Need for Extrajudicial Settlement When Buying Property From a Widower (Philippines)

Why this matters to a buyer

When you’re buying real property from a widower, you need to confirm who actually owns the property and who has the legal power to sell it. In Philippine law, the death of a spouse often leaves property in a co-ownership among the surviving spouse and the heirs. Unless the estate has been settled—whether extrajudicially (out of court) or judicially (through a court proceeding)—the seller usually cannot transfer clean title to you for the entire property.

Core legal concepts (in plain language)

1) Property regimes during marriage

What the widower can validly sell depends on how the property was owned in marriage:

Absolute Community of Property (ACP) – the default for marriages on or after August 3, 1988 under the Family Code. Almost all property acquired before and during marriage becomes community property, with certain exclusions (e.g., exclusive property by gratuitous title with express exclusion).
Conjugal Partnership of Gains (CPG) – typical for marriages before August 3, 1988 unless spouses agreed otherwise. Property acquired during marriage (fruits and gains) is conjugal; exclusive properties remain separate.
Exclusive/Paraphernal – property exclusively owned by one spouse (e.g., acquired before marriage, or by donation/inheritance with exclusion).

Effect of death:

If the asset was ACP/CPG, the community/conjugal partnership is dissolved. The surviving spouse owns his ½ share, while the other ½ forms part of the decedent’s estate, to be divided among heirs (including the surviving spouse).
If the asset was exclusive of the deceased, the entire property forms part of the estate; the widower gets only his hereditary share as a compulsory heir.

2) Settlement of estate

Judicial settlement or probate – required if there is a will (probate is mandatory) or if extrajudicial settlement (EJS) is not available.
Extrajudicial Settlement (EJS) – allowed when:
1. The deceased left no will;
2. No outstanding debts, or all debts have been paid;
3. All heirs are of legal age, or minors are represented by judicially appointed guardians; and
4. Heirs execute a public instrument (notarized), and publish the fact of the settlement once a week for three consecutive weeks in a newspaper of general circulation (creditors’ notice). For personal property, a bond may be required. Two common forms:
- Deed of Extrajudicial Settlement (EJS) among heirs; or
- Affidavit of Self-Adjudication (ASAJ) when there is only one heir.

3) Creditors and omitted heirs

Even after EJS, creditors and persons unduly deprived have statutory remedies to challenge or recover from the heirs (and sometimes from transferees in bad faith). Titles derived from EJS commonly carry an annotation referring to this risk. As a buyer, you mitigate this through due diligence, proper warranties, and indemnities.

So… can a widower sell without an EJS?

If the property is titled solely in the name of the deceased spouse: No clean transfer to you is possible until the estate is settled and the title is transferred from the decedent to the heirs (or directly to you via a combined settlement-with-sale instrument). The Registry of Deeds will require estate documents and BIR clearances.
If the property is conjugal/community and titled in both spouses’ names: The widower can sell only his undivided share. Selling “the entire property” without the other heirs’ participation (or without settlement) is ineffective as to the deceased’s share. You would at best become a co-owner with the heirs—not what a buyer usually wants.
If the property is exclusively the widower’s (e.g., acquired before marriage, or clearly excluded from the property relations): The widower may sell it alone; no EJS is required for that asset. But be very sure it is indeed exclusive—check the chain of title and supporting docs.

Buyer’s due-diligence roadmap

Identify the property regime and owner of record
- Get a Certified True Copy (CTC) of the title from the Registry of Deeds.
- Review annotations (mortgages, liens, prior claims, Sec. 4 Rule 74 notations).
- Obtain the marriage certificate and determine the marriage date to infer ACP vs. CPG.
- Examine when and how the property was acquired (deed of sale, donation, inheritance).
Confirm the heirs
- Obtain death certificate of the deceased spouse.
- Identify compulsory heirs: legitimate/illegitimate children and descendants, the surviving spouse, or ascendants if no descendants.
- If there are minors, expect judicial guardianship or court approval before EJS.
Choose a legally clean path to transfer
- Path A: EJS/ASAJ → transfer to heirs → sale to buyer (Two steps at the Registry; common when there will be multiple subsequent dispositions.)
- Path B: “EJS with Sale” Heirs settle and simultaneously sell the property to you in one public instrument. This is widely used in practice; registries often accept it if tax clearances and publication are in order.
Tax compliance (non-negotiable for registration)
- Estate Tax: File the Estate Tax Return and pay the estate tax (with penalties/interest if late), then secure the BIR Certificate Authorizing Registration (CAR) for estate transfer.
- Capital Gains Tax (CGT) or Creditable Withholding Tax (CWT) and Documentary Stamp Tax (DST) for the sale (separate CAR for the sale).
- Local Transfer Tax and updated Real Property Taxes at the LGU.
- You cannot register the transfer without BIR CAR(s).
Publication & filing
- Ensure EJS/ASAJ is notarized and published 1×/week for 3 weeks in a newspaper of general circulation.
- Register the EJS/ASAJ with the Registry of Deeds (for real property) and with the Assessor’s Office to update the tax declaration.
Registration sequence (typical)
- Submit EJS/ASAJ + supporting docs and Estate CAR to transfer title from decedent to heirs (or directly to you if “with Sale”).
- Submit Deed of Absolute Sale (or the combined instrument) + Sale CAR to issue a new TCT/CCT in your name.
- Update tax declarations at the Assessor.

Common buyer pitfalls (and how to avoid them)

Buying from a widower without estate settlement: You can’t register the full title. Remedy: insist on an EJS/ASAJ or judicial settlement and BIR CAR(s) before or at closing.
Assuming there are no other heirs: Later-surfacing children or heirs can challenge the transfer. Remedy: obtain seller’s Affidavit of Heirship, require IDs/birth certificates, and use warranties + indemnity.
Ignoring minors’ rights: EJS is invalid without proper guardianship/court approval for minors. Remedy: confirm ages and guardianship documents.
Unpaid debts of the decedent: Creditors can pursue the estate and, in certain cases, recovered assets. Remedy: obtain no-debt affidavits, require escrows/retentions, and consider a creditors’ publication even if sellers claim “no debts.”
Skipping publication: Lack of publication can jeopardize the settlement’s effect vis-à-vis third parties. Remedy: verify proof of publication.
Tax non-compliance: Without CAR, no new title. Remedy: make CAR a closing condition.

Practical document checklist for closing

From the seller/widower and heirs

Government IDs, TINs, marriage/death/birth certificates as applicable
EJS/ASAJ (or EJS with Sale), notarized
Proof of newspaper publication (3 consecutive weeks)
If minors: Guardianship Order / court approval
BIR Estate CAR (estate transfer) and BIR Sale CAR (sale)
Deed of Absolute Sale (if separate from EJS)
Latest Real Property Tax (RPT) receipts; Tax Clearance
Original Owner’s Duplicate Title; updated Tax Declaration

From the buyer

Purchase price and proof of funds
Withholding/CGT, DST payment documents as required
Transfer Tax payment proof
Instructions to the Registry of Deeds and Assessor for issuance of new TCT/CCT and tax dec

Negotiation & risk-allocation tips for buyers

Make estate settlement, publication, and CAR(s) express conditions precedent to paying the bulk of the price.
Require seller’s warranties that there are no other heirs and no unpaid estate obligations, plus an indemnity for any breach or third-party claims.
Consider a holdback/escrow (e.g., 10–20% of price) released after title transfer and lapse of creditors’ claim period (or a negotiated date).
If timing is tight, structure closing as contemporaneous: submit EJS/ASAJ, CARs, and sale for registration together.

Special scenarios

There is a will: Probate is mandatory. EJS is not a substitute. Buyer should wait for court-approved distribution or, at minimum, insist on an order authorizing the sale.
Only one heir (the widower) and no debts: An Affidavit of Self-Adjudication may suffice (with publication), followed by taxes and registration.
Multiple heirs—but one refuses to sign: The refusing heir’s share remains outstanding. The widower can sell only his own undivided share, and you risk co-ownership litigation. Judicial settlement or partition may be necessary.
Property still in the deceased spouse’s sole name: Title must move from the decedent (via estate settlement) before it can cleanly reach you, whether in two steps or in a combined “with Sale” instrument.

Frequently asked questions

Q: Can I pay and take possession while the family “fixes the papers”? A: Highly risky. Without EJS/probate and CAR(s), you may be unable to register the title. If you proceed, use escrow, conditions precedent, and occupancy only after submission for registration.

Q: Is publication really required for EJS? A: Yes—once a week for 3 consecutive weeks. Keep proof of publication for the file and for the Registry.

Q: If the widower sold me the whole property without EJS, is the sale void? A: It’s ineffective as to the decedent’s share. You may acquire only the widower’s pro-indiviso interest, leaving you in co-ownership with heirs. Seek ratification by the heirs or unwind the transaction.

Q: Can the EJS and the sale be in one document? A: In practice, yes: a “Deed of Extrajudicial Settlement of Estate with Sale.” Registries often accept it if taxes and publication are complied with.

Q: What if there are debts? A: EJS is generally not available until debts are paid/settled. Consider judicial settlement or settle creditors first and reflect that in the deed.

Bottom line for buyers

If the property traces to a deceased spouse, insist on proper estate settlement (EJS with full compliance or judicial settlement), complete tax clearances (CARs), and registration to your name as a condition to closing. A widower alone usually cannot convey full and registrable title to estate property without these steps.

This material is for general information only and is not a substitute for tailored legal advice from Philippine counsel on your specific facts.