How to Transfer Title When the Seller Has Died: Extrajudicial Settlement for Unregistered Deeds (Philippines)

When a property owner (the “seller”) dies before a sale is registered—or when a sale exists only on paper and was never brought to the Register of Deeds—the buyer and the heirs often face a procedural knot: How do you validly transfer title now that the seller is gone? In the Philippines, the usual path is an extrajudicial settlement under Rule 74 of the Rules of Court, paired with the right mix of tax clearances and registrable deeds to perfect the conveyance.

This guide explains the legal concepts, decision points, step-by-step process, forms, taxes, timelines, and common pitfalls—for both titled (registered) and untitled (unregistered) land, and for unregistered or imperfect deeds of sale.

A. Core Legal Framework

Rule 74 (Extrajudicial Settlement of Estate)
- Available only if: (a) the decedent left no will, (b) no outstanding debts (or debts are fully settled/assumed), and (c) all heirs are of legal age (or minors are represented by judicially appointed guardians or by parents with court approval when required).
- Requires a public instrument (notarized) and publication in a newspaper of general circulation once a week for three consecutive weeks.
- The instrument is filed with the Register of Deeds (for titled lands) or recorded for unregistered lands.
- A bond equal to the value of personal property may be required if personalty is distributed extrajudicially.
- Persons not included or prejudiced retain remedies (e.g., actions within the statutory window against distributees).
Property Registration Decree (PD 1529)
- Governs Torrens registration (TCT/OCT). Instruments affecting registered land must be presented to the Register of Deeds (RD) for entry and annotation.
- For unregistered land, instruments are recorded with the RD (not a Torrens registration), then carried to the Assessor for issuance/transfer of Tax Declarations.
Civil Code Rules on Succession and Co-ownership
- Upon death, ownership transfers by operation of law to the heirs, subject to debts, taxes, and legitimes.
- Heirs step into the shoes of the seller and can confirm or complete the conveyance (if a sale occurred) or sell the property (if no sale occurred, or an earlier private document is defective).
Tax Codes & BIR Procedures (high level)
- Estate Tax is generally due on the net estate as of the date of death.
- Capital Gains Tax (CGT) and Documentary Stamp Tax (DST) apply to a sale of real property classified as capital asset.
- LGU Transfer Tax and Registration Fees apply when documents are presented for registration.

B. Clarifying the Scenario: What “Unregistered Deed” Means

“Unregistered deed” commonly means any of the following:

Notarized deed of sale exists but was never registered with the RD.
Private (unnotarized) deed/receipt exists (thus not registrable); or a photocopy exists but the original is lost.
The land itself is unregistered/untitled (no OCT/TCT), usually held by Tax Declaration only.

Each variant changes the workflow, taxes, and evidentiary requirements.

C. Decision Tree (Quick Triage)

Is the land under the Torrens system (OCT/TCT)?
- Yes → Work with the Register of Deeds for annotation/transfer.
- No (unregistered land) → Record instruments with RD (for deeds affecting unregistered land) and process Tax Declaration transfer with the Assessor.
Is there a valid, notarized deed of sale pre-death?
- Yes → The heirs can acknowledge/confirm it; taxes align with a pre-death sale; proceed to registration.
- No or defective → The heirs may execute either:
  - a Deed of Extrajudicial Settlement with Sale/Confirmation in favor of the buyer; or
  - an EJS to heirs first, then a new deed of sale from the heirs to the buyer.
Are there minors, unknown heirs, disputes, or unpaid debts?
- Any “yes” → Consider judicial settlement (probate/letters of administration or a special proceeding). Extrajudicial route may be improper or risky.

D. Standard Pathway (Torrens-Titled Property)

Step 1: Gather Evidentiary & Identity Documents

Owner’s death certificate.
Marriage certificate (if applicable), birth certificates of heirs; CENOMAR (as needed to prove heirship).
Owner’s duplicate title (OCT/TCT); if lost, file Petition for Issuance of Owner’s Duplicate or Reconstitution, as applicable.
Tax Declaration, latest Real Property Tax (RPT) receipts, and Tax Clearance (LGU).
Existing deed(s) (original notarized sale, if any). If only a private document exists, prepare Affidavit of Loss/Affidavit of Explanation and a Confirmation Deed by heirs.

Step 2: Pick the Correct Instrument

If a notarized pre-death sale exists but wasn’t registered
- Execute a Deed of Extrajudicial Settlement (EJS) with Confirmation of Sale, where all heirs:
  - acknowledge the seller’s prior sale to the buyer,
  - waive/cede any hereditary rights over the subject property, and
  - direct transfer/registration to the buyer.
- Alternatively, file a Deed of Confirmation of Sale signed by heirs, plus a simple EJS excluding the property as “already sold.”
If no registrable deed exists (private receipt, unsigned draft, or missing original)
- Execute a Deed of Extrajudicial Settlement with Sale (heirs as sellers) in favor of the buyer; or
- Do an EJS to heirs first, then a new Deed of Absolute Sale from heirs to the buyer.

Tip: Where the original seller’s spouse exists and the land is conjugal/CPG/ACP, include the spouse among the heirs (or as a co-vendor) and account for the spousal share.

Step 3: Publication (Rule 74)

Publish the fact of the extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation. Keep proofs of publication.

Step 4: Taxes & Clearances (Typical Order)

Estate Tax (BIR) – for the decedent’s estate (if property passes to heirs prior to sale, or if BIR treats the property as part of the estate because the pre-death sale is not accepted or lacks substance).
- File the Estate Tax Return; pay estate tax (with possible amnesties/penalties, if applicable).
- Obtain eCAR (Estate) listing the property.
Capital Gains Tax (CGT) & Documentary Stamp Tax (DST) – if there is/was a sale to the buyer.
- If the BIR recognizes a pre-death notarized sale, CGT/DST are computed based on that sale (using higher of zonal value or consideration).
- If heirs sell post-death, CGT/DST apply to the heirs’ sale.
Local Transfer Tax – settle with the City/Municipal Treasurer.
RPT Clearance – pay any arrears/penalties and secure Tax Clearance from the Assessor/Treasurer.

Practical note: The BIR will only issue eCAR(s) after tax compliance. Registration at the RD will require the appropriate eCAR(s) (Estate and/or CGT), official receipts, and proof of publication.

Step 5: Registration with the RD

Present: EJS/Confirmation/Sale deed(s), eCAR(s), Tax Receipts, Transfer Tax ORs, IDs, Proof of Publication, Owner’s Duplicate Title.
RD will cancel the seller’s TCT/OCT and issue a new TCT in the buyer’s name (or in the heirs’ name if doing it in two stages).
If the eCAR is only Estate, the title may first be issued to the heirs; then a separate sale to the buyer follows with CGT/DST and a second RD visit.

E. Unregistered (Untitled) Land

Record the EJS/Confirmation/Sale with the Register of Deeds (recording for unregistered lands).
Process Estate Tax and, where applicable, CGT/DST, then pay Local Transfer Tax.
Bring instruments and tax proofs to the Assessor to cancel the old Tax Declaration and issue a new Tax Declaration in the buyer’s name.
Consider judicial or administrative titling (e.g., original registration, free patent where eligible) to avoid future disputes, especially if value/use is significant.

F. Special Issues & How to Handle Them

Minors or Incapacitated Heirs
- Obtain court-approved guardianship and court approval for sales affecting a minor’s share. Without this, registration may be rejected and the deed voidable.
Unknown/Absent Heirs or Disputes
- Use judicial settlement (special proceedings). Extrajudicial routes are improper where heirship is uncertain or contested.
Outstanding Debts of the Estate
- Rule 74 requires no debts or debts already paid/provisioned. If debts exist, creditors can challenge the EJS; better to do judicial settlement or secure waivers/settlements first.
Lost Owner’s Duplicate Title
- File the appropriate petition with the court or the RD administrative process (as allowed), then proceed once a replacement is issued.
Unnotarized/Private Receipt of Sale
- Not registrable. Cure via:
  - Deed of Confirmation by heirs acknowledging the prior sale and
  - a registrable deed (EJS with Sale or new Deed of Sale).
Adverse Claim / Affidavit of Loss
- If delays threaten your position and the land is titled to the seller, consider an Affidavit of Adverse Claim (statutory limit applies) to give notice of your interest, while you complete taxes and documents.
CPG/ACP (Marital Property)
- If land was conjugal or under absolute community, spousal share must be respected; include the spouse in EJS and sale or reflect the proper partition before selling to the buyer.
Overdue Taxes & Penalties
- Expect surcharges and interest for late estate tax or CGT/DST. Factor these into negotiations between heirs and buyer.

G. Typical Document Checklist

Identity & Status

Death certificate of seller
Marriage certificate (if applicable)
Birth certificates of heirs
Government IDs / TINs
SPA(s) for representatives (consularized/apostilled if abroad)

Property

Owner’s Duplicate Title (or court order/reissued duplicate)
Certified True Copy of TCT/OCT (RD)
Tax Declaration and latest RPT ORs
Tax Clearance (Assessor/Treasurer)

Transactions

Existing deed(s) (original notarized sale, if any)
Deed of Extrajudicial Settlement (with Confirmation of Sale or with Sale)
Proof of Publication (3 weeks)
Affidavit of Loss (if original deed is missing) and any Acknowledgment/Confirmation of Sale by heirs

Tax

Estate Tax Return + eCAR (Estate)
CGT Return + DST Return + eCAR (Sale)
Local Transfer Tax ORs
BIR valuation documents (zonal value/FCV printouts, as required at filing)

Registration

RD intake forms, fees ORs

H. Sample Barebones Clauses (for Guidance Only)

Deed of Extrajudicial Settlement with Confirmation of Sale

Parties: All compulsory heirs of the late [Seller], identified and of legal age (or duly represented).

Recitals: Death of [Seller] on [date]; description of property (TCT/OCT No., Lot/Block, area, location).

Prior Sale: Acknowledge that [Seller] sold the property to [Buyer] on [date] under a deed (describe/notary details or explain loss).

Confirmation: Heirs confirm and ratify the sale; waive all hereditary rights/interests over the property in favor of [Buyer].

Undertaking: Heirs undertake to assist registration; declare estate debts settled; authorize publication under Rule 74.

Publication: Parties shall cause publication once a week for three consecutive weeks.

Taxes/Fees: Parties agree on allocation of estate tax, CGT/DST, transfer tax, and registration fees.

Signatures and Notarization.

Affidavit of Loss (Original Deed of Sale) – Affiant states custodianship, circumstances of loss, diligent search, and request the RD/BIR to accept secondary evidence (copy, notarial registry certification, or heirs’ confirmation).

Extrajudicial Settlement with Sale (heirs as sellers) – Heirs adjudicate the property unto themselves and simultaneously sell to [Buyer] for ₱[amount], subject to taxes and registration.

These samples are for educational guidance only; tailor them to your facts and local RD/BIR checklists.

I. Taxes: Which Apply When?

Estate Tax: Due if the property is considered part of the estate at death. If there’s a valid, notarized pre-death sale accepted by BIR as a consummated sale, the BIR may assess CGT/DST (on the sale) rather than estate tax on that asset.
CGT & DST:
- If heirs sell post-death → CGT/DST are on the heirs’ sale price or zonal/FCV, whichever is higher.
- If pre-death sale is recognized → CGT/DST are on the seller’s sale; heirs simply confirm and allow registration.
Local Transfer Tax: Collected by LGU upon transfer/registration.
RPT: Settle arrears to avoid RD/Assessor bottlenecks.

Practical strategy: At the BIR ONETT/Estate window, present your fact pattern clearly (dates, notarization, deed status). The date of notarization and document integrity often drive whether the BIR treats the transfer as estate versus sale—and the required eCAR(s).

J. Timelines & Sequencing

EJS drafting & notarization: as soon as documents are ready.
Publication: 3 consecutive weeks.
BIR processing: varies by district and completeness; plan for back-and-forth on valuations, notarials, and IDs.
RD registration: typically after eCAR(s) and transfer tax ORs are complete.

Note: Registration can run in parallel with publication in some RDs (they’ll require proofs before release), but practices vary. Always match local RD/BIR checklists.

K. Common Pitfalls (and Fixes)

Leaving out an heir → Later challenges to title. Fix: full heir mapping; if unknown, go judicial.
Minor heirs without court approval → Voidable sale. Fix: guardianship + court leave.
Debt-laden estate → Creditor suits versus distributees. Fix: settle debts or go judicial settlement.
Using private receipts only → Not registrable. Fix: heirs’ confirmation + registrable deed.
Lost owner’s duplicate title → Registration impossible. Fix: petition for issuance/reconstitution first.
Tax misclassification → Wrong eCAR causes RD rejection. Fix: align with BIR (estate vs sale), prepare for both if necessary.
Conjugal property ignored → Spousal claim later. Fix: identify regime, include spouse’s share.

L. When You Should Avoid Extrajudicial Settlement

There is a will (needs probate).
There are contested heirs, claims, or debts.
Any party refuses to sign or capacity is doubtful.
Property description or boundaries are in dispute. In these cases, proceed with judicial settlement or seek specific performance (if a buyer sues to compel conveyance) with ancillary relief.

M. Practical, Field-Tested Sequencing (Titled Property)

Map the heirs & regime (ACP/CPG/paraphernal).
Check deed status (pre-death notarized? private receipt? missing?).
Draft & notarize:
- EJS + Confirmation of Sale (if deed exists), or
- EJS + Sale by heirs (if none).
Publish (3 weeks).
Settle taxes: Estate (if applicable), then CGT/DST (depending on approach), then LGU Transfer Tax. Secure eCAR(s).
Register with RD (bring Owner’s Duplicate Title).
Pick up new TCT in buyer’s name (or heirs first, then sale to buyer).
Update Tax Declaration at Assessor.

N. Final Notes

Documents must be precise (technical description exactly as per title; names consistent with IDs/PSA records).
Notarization is essential for registrability; overseas signatories must consularize/apostille.
Keep all receipts and proofs of publication; RD and BIR rely on them.
Consider registering an adverse claim (if available and appropriate) to protect the buyer’s interest while curing defects.
When in doubt on classification (estate vs sale), prepare both tracks and obtain guidance at the BIR ONETT/Estate counter for your RDO.

Disclaimer

This article provides a comprehensive overview for general informational purposes and is not legal advice. Facts vary widely (marriage regime, minors, deed dates, missing documents, tax posture, RD/BIR local practice). Consult a Philippine lawyer or a seasoned conveyancing practitioner to tailor the process to your case.