Inclusion of the Heirs of a Deceased Sibling in an Extrajudicial Settlement of Estate
(Philippine Law, Updated to May 2025)
1. What is an “extrajudicial settlement”?
| Key point | Legal basis | Practical take-aways |
|---|---|---|
| Settlement of a decedent’s estate without going to court when (a) the decedent left no will, (b) no debts or all debts have been paid, and (c) all heirs are of legal age or duly represented minors. | Rule 74, §1, Rules of Court; Civil Code Art. 1051 | File a Deed of Extrajudicial Settlement (EJS), publish it 3× in a newspaper of general circulation, pay the estate tax, and register the deed with the Register of Deeds/appropriate registry. |
Any heir the law calls to succession must be a signatory; otherwise the EJS is fatally defective.
2. Why do the heirs of a pre-deceased or subsequently deceased brother/sister matter?
Philippine succession follows representation (subrogation) and transmission principles:
| Scenario | Governing principle | Resulting share |
|---|---|---|
| Sibling died before the decedent | Right of representation in the collateral line (Civil Code Arts. 970-975, §982) | The sibling’s children (nephews/nieces of the decedent) step into their parent’s shoes and divide the parent’s presumptive share per stirpes. |
| Sibling died after the decedent but before the estate is settled | Transmission of hereditary rights (Arts. 777 & 1311) | All rights already vested in the sibling pass to his/her own heirs and must be respected in the EJS. |
Representation in the collateral line never goes beyond nephews/nieces; grand-nephews cannot represent their grandparent-uncle/aunt.
3. Order of intestate succession when the decedent leaves no spouse and no descendants
- Legitimate parents and ascendants
- Brothers and sisters, and children of deceased brothers/sisters by representation
- Other collateral relatives up to the 5th degree
- The State (escheat)
If parents have already died, the siblings (and the representatives of any pre-deceased sibling) succeed in equal shares.
4. Documentary and procedural checklist including heirs of a deceased sibling
| Step | What to do | Special notes for heirs of deceased sibling |
|---|---|---|
| 1. Identify heirs | Secure certified true copies of birth/marriage/death certificates to prove lineage. | Obtain the death certificate of the sibling and birth certificates of the nephews/nieces. |
| 2. Draft the deed | Title: “Deed of Extrajudicial Settlement Among Heirs.” List all heirs, including represented heirs, stating their relationship and shares. | Minors sign through a judicially appointed guardian ad litem; attach Letters of Guardianship. |
| 3. Notarize | All heirs (or their attorneys-in-fact/guardians) must appear before the notary. | Each representative signs both in his own right and as representative (e.g., “Juan dela Cruz, in his own behalf and in representation of …”). |
| 4. Publish | 3 consecutive weeks in a newspaper of general circulation in the province. | The publication protects purchasers in good faith after two years (Rule 74, §4). |
| 5. Pay estate tax | File BIR Form 1801 within 1 year from death; attach the EJS and supporting docs. | The BIR will refuse clearance if even one compulsory heir is missing. |
| 6. Register | Real property: Register of Deeds; personal property: appropriate registries/banks. | The omitted heir may annotate a lis pendens or file an adverse claim if left out. |
5. Consequences of omitting the heirs of a deceased sibling
| Consequence | Nature | Prescriptive period |
|---|---|---|
| EJS void as to the omitted heir’s share | Acts outside power of signatories; they could not convey what they did not own. | Imprescriptible action for reconveyance of the registered property portion belonging to the omitted heir (Supreme Court line of cases e.g., Heirs of Malate v. Gamboa, G.R. 214658, 29 Jan 2018). |
| Possible criminal liability | Falsification (Art. 171 RPC) or estafa if bad faith/intent to defraud is shown. | Within 15 years for falsification; 20 years for estafa (Art. 90 RPC). |
| Tax penalties | Surcharge, interest, compromise penalties for under-declared estate tax. | BIR may impose 25–50 % surcharge plus 12 % p.a. interest. |
6. Frequently litigated issues
“The nephew was abroad and didn’t sign; is the EJS valid?”
No. A special power of attorney or judicial guardian must be secured; otherwise the deed is void with respect to that heir.“A sibling waived his share, but died before notarization; is waiver still effective?”
No. Death renders the waiver inchoate; his successors must reiterate or withdraw the waiver.“Heirs discovered the omission after the property was sold to a third party.”
If the buyer purchased within 2 years from publication and in good faith, the remedy is to sue the signatory-heirs for the value of the share. After 2 years, the buyer is insulated; the omitted heirs are limited to an action against their co-heirs (Rule 74, §4).
7. Drafting pointers & best practices
- Caption the deed to reflect representation, e.g., “Heirs of the late Sps. X and the Heirs of the late Y (represented by A, B, C)…”
- Attach a simple family tree as Annex “A” for clarity.
- Use per-stirpes allocations when representation applies; spell out the fractional shares explicitly.
- Double-check minors and incompetents; obtain court approval for any compromise (Rule 97).
- Keep copies of tax clearances and newly issued titles/transfer documents; these are primary defenses against future suits.
8. Summary of governing provisions
| Code/Rule | Sections/Articles |
|---|---|
| Civil Code | Arts. 777-782 (transmission), 960-1016 (intestate succession), 970-975 & 982 (representation, collateral line), 1083-1091 (partition) |
| Rules of Court | Rule 74 (Extrajudicial Settlement), Rule 97 (Guardianship), Rule 74 §4 (2-year buyer protection) |
| National Internal Revenue Code | §§84–97 (estate tax), Revenue Regs. 12-2022 (electronically filed estate tax) |
| Revised Penal Code | Arts. 171 (2), 315 (1)(b) |
| BIR issuances | RMO 15-2003 (self-assessment guidelines), RMC 62-2024 (updated estate-tax rates) |
9. Final thoughts
Including the heirs of a deceased sibling is not merely courteous—it is legally indispensable. The settlement’s validity, the integrity of real-property titles, and the parties’ potential criminal and tax liabilities all hinge on strictly observing:
- Representation and transmission rules
- Universal participation of heirs or their lawful substitutes
- Procedural safeguards (publication, taxes, registration)
When in doubt—particularly if minors or foreign-residing heirs are involved—secure competent Philippine legal counsel and, where necessary, court approval.
This article is for educational purposes and does not create an attorney-client relationship. For specific cases, consult a licensed Philippine lawyer.