The extrajudicial settlement of estate (EJS) serves as a primary mechanism for heirs to divide and transfer the properties of a deceased person without court intervention in the Philippines. Governed by Rule 74 of the Rules of Court, this process applies when the decedent left no will, the estate has no outstanding debts (or debts have been settled), all heirs are of legal age or properly represented, and they unanimously agree on the distribution. The EJS must be executed as a public instrument—typically a notarized deed—to have legal effect for property registration and tax purposes.

Estate taxation, regulated under the National Internal Revenue Code (NIRC) as amended by Republic Act No. 10963 (TRAIN Law), imposes a flat 6% tax on the net estate, computed based on the fair market value of properties at the time of death. The estate tax return (BIR Form 1801) must generally be filed within one year from the decedent’s death, with possible extensions. A Certificate Authorizing Registration (CAR or eCAR) from the Bureau of Internal Revenue (BIR) is required to transfer titles or register the settlement with the Register of Deeds (RD). The notarization date of the EJS plays a critical role because it evidences the execution and formalization of the settlement, affects the timeline for compliance, publication requirements, and the submission of proof of settlement to the BIR for CAR issuance.

Discrepancies or errors in the notarization date—whether due to clerical mistakes, delayed execution, or changes in circumstances—often necessitate amendment to ensure proper estate tax compliance, avoid penalties, facilitate property transfer, and maintain the integrity of public records. Amendment prevents issues such as rejection of the CAR, delays in RD registration, or exposure to surcharges, interest, and potential falsification charges under the Revised Penal Code.

Legal Basis

Rule 74, Section 1 of the Rules of Court authorizes extrajudicial settlement through a public instrument filed with the RD, conditioned on the publication of the settlement once a week for three consecutive weeks in a newspaper of general circulation. The instrument becomes binding after compliance with these formalities, subject to the two-year period for claims by excluded heirs or creditors under Section 4.

Notarization converts the deed into a public document under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC), granting it presumptive authenticity and evidentiary weight. The notarization date establishes when the heirs acknowledged the document before a notary public, which is material for determining the effective date of transfer for registration purposes and for BIR verification.

Estate tax provisions under Sections 84 to 97 of the NIRC, as amended, require accurate documentation of settlement for the issuance of the CAR. Revenue Regulations and rulings emphasize that proof of settlement (EJS or court order) must accompany or follow the tax return for complete processing. Amendments to public documents, including correction of dates, are permitted when made in good faith to reflect truth or correct errors, provided all parties consent and proper formalities are observed. Fraudulent backdating or alteration to evade taxes constitutes falsification of a public document (Article 172, Revised Penal Code) and may trigger civil, criminal, and administrative liabilities, including revocation of notarial commission.

The Data Privacy Act and general principles of contract and succession (Civil Code Articles 774–1105) further require that any amendment respects the rights of all heirs and does not prejudice third parties or government revenue.

When Amendment of Notarization Date Becomes Necessary for Estate Tax Compliance

Common scenarios include:

Clerical or typographical errors in the original notarization date (e.g., wrong month or year entered by the notary or drafter).
Delayed notarization after the heirs signed the draft, causing the actual execution date to fall outside the one-year estate tax filing period.
Discovery of additional properties, omitted heirs, or the need to adjust distribution after the original EJS, requiring a supplemental or amended deed.
BIR or RD requiring alignment of the documented settlement date for CAR issuance or title transfer, especially when late filing triggers penalties.
Changes in law or amnesty programs (such as past estate tax amnesty extensions) that encourage or necessitate updated documentation to avail of benefits or regularize compliance.
Preparation for sale or further disposition of inherited properties, where the EJS date affects capital gains tax basis or documentary stamp tax computations.

The notarization date itself does not alter the estate tax valuation date (date of death) but serves as evidence of when the heirs formally settled the estate, which the BIR and RD use to verify timeliness and completeness of submission.

Grounds for Amending the Notarization Date

Amendments are justified only on valid grounds:

Genuine Error or Mistake: Mutual mistake of fact among heirs and the notary, supported by affidavits explaining the discrepancy.
Delayed Execution: The deed was prepared earlier but notarized later due to logistical issues (e.g., absent heirs, document gathering), and correction is needed to reflect the intended or actual agreement date.
Substantive Changes Requiring Restatement: Inclusion of new assets or modifications that warrant a new notarized instrument reciting the corrected timeline.
Compliance-Driven Adjustment: To synchronize with estate tax filing deadlines, extension approvals, or amnesty availment without falsifying records.

Any amendment must be prospective in effect—the new notarization occurs on the actual date the amended document is executed and acknowledged. Retroactive alteration of the original notarial act without proper procedure is prohibited.

Procedure for Amendment

The standard method is the execution of an Amended Deed of Extrajudicial Settlement of Estate (or Supplemental EJS) that:

Recites the details of the original EJS, including its date, notarial details, and RD registration (if already filed).
Clearly states the reason for amendment and the corrected or updated notarization/execution facts.
Reaffirms or modifies the distribution as necessary, with unanimous consent of all heirs.
Includes all required recitals under Rule 74 (e.g., no debts, publication undertaking if applicable).
Is signed by all heirs (or their representatives) and witnesses.

All heirs must appear before a notary public for fresh acknowledgment on the actual date of the amendment. The notary executes the notarial certificate with the current date, which becomes the new notarization date.

If the change is minor and purely notarial (e.g., typographical date error with no substantive impact), the original notary may issue a notarial correction affidavit or certification, which is then attached to the original EJS and submitted to relevant offices. However, for estate tax and RD purposes, a full amended deed is safer and more commonly accepted.

Publication: For the amended deed, fresh publication in a newspaper of general circulation for three consecutive weeks is advisable, especially if the amendment affects property distribution or introduces new assets. This restarts the two-year prescriptive period for certain claims in some interpretations.

Bond: If personal property is involved, a new or supplemental bond may be required when filing with the RD.

Documentary Requirements

Original and amended EJS deeds (notarized).
Certified true copy of the decedent’s death certificate.
Proof of publication for both original and amended deeds (affidavit and newspaper clippings).
Affidavit of Explanation or Joint Affidavit of Heirs detailing the reason for the date amendment.
Valid government-issued IDs of all heirs.
Tax declarations, titles, or other property documents.
Original estate tax return and proof of payment; amended return (BIR Form 1801) if the amendment affects computations or previously reported values.
BIR-issued CAR/eCAR (or application for new/updated one).
Special Power of Attorney if any heir is represented.
For minors or incompetents: Court-appointed guardian’s authority.

All documents must be submitted in original or certified true copies as required by the BIR or RD.

Tax Implications and BIR Process for Compliance

Estate tax liability accrues at death and is independent of the EJS date. However, the settlement document is crucial for:

Claiming deductions (e.g., funeral expenses, judicial expenses, claims against the estate).
Computing net estate and the 6% tax.
Securing the CAR necessary to lift the tax lien on properties.

When amending the EJS:

File an amended estate tax return if the original filing requires updates due to the amendment (e.g., revised distribution or newly included properties).
Pay any additional tax, surcharges (25% or 50% for late filing), interest (12% or prevailing rate), and compromise penalties.
Submit the amended EJS together with an explanation letter to the Revenue District Office (RDO) where the decedent was domiciled.
Request issuance or re-issuance of the eCAR, which will reference the amended settlement.

Under past amnesty programs, relaxed rules sometimes allowed undertakings in lieu of full EJS, but regular compliance now strictly requires complete, notarized proof of settlement. Late or amended submissions may qualify for installment payments (up to two years for extrajudicial settlements) upon BIR approval if undue hardship is shown.

Registration with the Register of Deeds and Other Offices

After BIR clearance:

Present the amended EJS, original EJS, CAR, and publication proofs to the RD where the real properties are located.
Pay transfer taxes, documentary stamp tax, and registration fees.
The RD annotates the title to reflect the settlement and any amendment.
For personal properties (e.g., vehicles, bank accounts), present documents to the relevant agencies (LTO, banks) for transfer.

Local government units may impose their own transfer taxes with deadlines often tied to the deed date, necessitating prompt action after the new notarization.

Potential Issues, Risks, and Penalties

Falsification: Attempting to backdate the notarization to an earlier fictitious date exposes parties and the notary to criminal liability.
Disagreement Among Heirs: Lack of unanimous consent requires shifting to judicial partition.
Creditor Claims: Amendment does not extinguish the two-year window for unpaid creditors.
Penalties: Late estate tax payment incurs 25% surcharge, interest, and possible compromise fines. RD may refuse registration without proper CAR.
Third-Party Challenges: Amended documents may invite scrutiny from excluded heirs or buyers relying on the original record.
Notarial Liability: Notaries who improperly alter dates risk administrative sanctions, including suspension or disbarment.

Courts may uphold amendments made in good faith but will void those intended to defraud the government or prejudice rights.

Special Circumstances

Single Heir: Use Amended Affidavit of Self-Adjudication instead of deed.
Minors or Incapacitated Heirs: Require guardian or court approval for the amendment.
Overseas Heirs or Properties: Notarization may occur at Philippine consulates; apostille or authentication may be needed for foreign elements. Bilateral agreements or special rules apply for foreign assets.
Testate Estates: EJS is generally unavailable if a will exists; judicial probate is required, though settlement post-probate may allow similar amendments.
Additional Properties Discovered: The amended EJS must include them, triggering possible additional estate tax on the new assets.

Best Practices to Avoid or Minimize the Need for Amendment

Prepare and notarize the EJS as soon as possible after death, ideally within months, while gathering all documents.
Verify all heirs, properties, and debts thoroughly before execution.
Engage a lawyer experienced in estate matters to draft the deed accurately.
File the estate tax return promptly (even if using extensions) and coordinate EJS notarization to align timelines.
Maintain records of all communications and drafts.
Conduct regular family meetings to ensure consensus.
Publish promptly and retain proofs meticulously.

Properly executed and amended EJS, when handled with transparency and adherence to legal formalities, ensures efficient estate tax compliance, smooth property transfer, and protection of heirs’ rights under Philippine law. Heirs should consult qualified legal and tax professionals to navigate the specific facts of each case, as procedural nuances continue to evolve with BIR issuances and judicial interpretations. This framework upholds the orderly transmission of property while safeguarding public revenue and the integrity of succession processes.