I. Nature and Purpose

An Extra-Judicial Settlement of Estate with Waiver of Rights (commonly abbreviated as EJS with Waiver) is the most commonly used notarial instrument in Philippine succession practice when the heirs are in complete agreement and wish to avoid the delay and expense of judicial probate or intestate proceedings.

It combines two legal acts in one document:

The extrajudicial partition of the estate among the heirs (Rule 74, Rules of Court; Arts. 1080–1088, Civil Code).
The gratuitous or onerous waiver/renunciation by one or more heirs of their hereditary share, either totally or partially, in favor of the remaining heirs or a specific heir.

The instrument is almost always executed as a public instrument (notarized) because real properties are almost invariably involved, and registration with the Register of Deeds requires it to be in authentic form.

II. Legal Bases

Rule 74, Sec. 1, Rules of Court – Extrajudicial settlement by agreement among heirs when the decedent died intestate, left no debts, and the heirs are all of legal age (or the minors are duly represented).
Rule 73, Sec. 1 – Venue is immaterial when settlement is extrajudicial; the two-year prescriptive period for creditors does not apply if there are truly no debts.
Articles 774–1105, Civil Code (Succession provisions).
Articles 1041–1057, Civil Code (Repudiation/Renunciation of Inheritance).
Article 1052 – Renunciation in favor of all co-heirs pro-indiviso (gratuitous) vs. renunciation in favor of specific heirs (treated as donation or sale).
BIR Revenue Regulations No. 2-2003, as amended by RR 13-2018 (TRAIN Law) – Tax treatment of waivers.
BIR Ruling DA-456-2005, DA-491-2004, and numerous subsequent rulings distinguishing pure renunciation from disguised donation.

III. When EJS with Waiver is Proper and Advantageous

It is proper when:

The decedent died intestate or, even if testate, the will is lost or all legatees/devisees and compulsory heirs agree to disregard the will and partition extrajudicially (very common in practice).
There are no outstanding debts, or all debts have been paid or assumed.
All heirs are in full agreement.
At least one heir wishes to completely relinquish his/her share (common in cases where one sibling is abroad, financially stable, or wishes to favor the sibling who took care of the parents).

It is advantageous because:

It is accomplished in 2–6 months instead of 1–5 years in court.
Cost is usually ₱50,000–₱150,000 nationwide versus ₱300,000–₱1,500,000 in judicial settlement.
Titles can be transferred and sold immediately after registration.

IV. Types of Waiver and Their Tax Consequences

A. Pure Renunciation (Gratuitous, Pro-Indiviso)
The waiving heir declares that he/she “waives and renounces all his/her hereditary rights in favor of his/her co-heirs in proportion to their respective shares.”
Tax treatment:

No donor’s tax (BIR Ruling DA-491-2004).
The waived share accrues to the other heirs by accretion (Art. 1015, Civil Code).
Only estate tax (6%) on the entire net estate.

B. Renunciation in Favor of Specific Heir(s)
The waiving heir specifies that the waiver is “in favor of my brother Juan de la Cruz only.”
Tax treatment:

Treated as a donation inter vivos.
Donor’s tax 6% on the value of the share waived (if to a relative within the 4th civil degree; otherwise stranger’s rate applies, but rarely used).
If consideration is given (e.g., the favored heir pays the waiving heir ₱5M), it is a sale → 6% capital gains tax + documentary stamp tax (1.5%).

C. Partial Waiver
Example: “I waive my rights only over the parcel in Quezon City but retain my share over the house in Makati.”
Tax treatment depends on whether the waiver is pro-indiviso or specific.

Best practice: Always use pure pro-indiviso renunciation to avoid donor’s tax.

V. Requirements for Validity

Fact of death of decedent (death certificate).
All heirs must be identified and must sign (legitimate, illegitimate acknowledged, surviving spouse, adopted).
No outstanding debts or, if there are, proof of payment or assumption.
Complete list and technical descriptions of all properties (real and personal).
The instrument must be notarized.
Publication once a week for three consecutive weeks in a newspaper of general circulation.
Filing of bond equivalent to the value of personal property if any (Rule 74, Sec. 1).
Payment of estate tax and issuance of BIR Certificate Authorizing Registration (CAR/eCAR).
Payment of transfer taxes/fees to LGU and Register of Deeds.

VI. Step-by-Step Preparation and Registration Procedure (2025)

Gather documents
- PSA Death Certificate
- Marriage certificate (if applicable)
- Birth certificates of all heirs
- Titles (TCT/OCT), tax declarations, personal property documents
- Proof of payment of realty taxes (up to year of death at least)
Draft the Deed (lawyer almost always prepares this)
All heirs sign before a notary public (consular notarization or apostille if abroad + SPA if represented)
Pay estate tax at BIR RDO of decedent’s last residence
- Avail of 5M standard deduction + 10M family home allowance (if qualified)
- Rate: 6% flat on excess
- Secure eCAR (electronic CAR)
Publish the entire deed (or a notice containing the material portions) once a week for 3 weeks
File the following with the Register of Deeds where properties are located:
- Notarized EJS with Waiver
- Owner’s duplicate titles
- eCAR
- Proof of publication + publisher’s affidavit
- Bond (if personalty)
- Transfer tax receipt from LGU (0.75% maximum)
- Registration fees
New titles are issued in the names of the remaining heirs (waiving heir is excluded)

VII. Standard Clauses and Recommended Format (2025)

DEED OF EXTRAJUDICIAL SETTLEMENT OF ESTATE WITH WAIVER OF RIGHTS

KNOW ALL MEN BY THESE PRESENTS:

We, [Full names, civil status, ages, addresses of all heirs], all Filipinos, of legal age, do hereby declare:

That we are the sole and compulsory heirs of [Decedent’s full name], who died intestate on [date] at [place of death], copy of whose Death Certificate is attached;
That the decedent left no will and, to the best of our knowledge, left no debts;
That the decedent left the following properties:
[Complete list with TCT Nos., area, location, tax dec. nos., vehicles with OR/CR, bank accounts, shares of stock, etc.]
That pursuant to Rule 74 of the Rules of Court, we hereby adjudicate unto ourselves the above-described properties in the following manner:
[Describe exact division, e.g., “The parcel covered by TCT No. 12345 is adjudicated solely to MARIA A. SANTOS”]
That heir [Name of waiving heir] hereby irrevocably WAIVES, RENOUNCES and QUITCLAIMS all his/her hereditary rights, interests and participation in the estate of the decedent in favor of his/her co-heirs in proportion to their respective hereditary shares, without any consideration whatsoever, and acknowledges that he/she shall no longer have any right, title or interest over any property of the estate;
That we hereby bind ourselves to publish this instrument in a newspaper of general circulation once a week for three consecutive weeks.

IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of _________, 202 at ___________, Philippines.

[Signatures over printed names of all heirs]

SIGNED IN THE PRESENCE OF:

[Two witnesses]

(Acknowledgment)

VIII. Common Variations

EJS with Simultaneous Deed of Absolute Sale (when the waiving heir actually sells his share).
EJS with Donation (when the waiver is onerous and in favor of specific heirs).
EJS with Special Power of Attorney inserted (when one heir is abroad).
EJS of Conjugal Estate with Waiver (surviving spouse + children).

IX. Frequent Errors that Cause BIR or RD Rejection

Waiver clause specifies a particular heir → BIR assesses donor’s tax.
Incomplete list of heirs (forgotten illegitimate child later surfaces → deed annullable).
No publication or published only a summary instead of the full deed.
Failure to file bond when there is personal property.
Using old estate tax rates or deductions (TRAIN Law applies to deaths from 2018 onward).
Minor heirs sign without judicial guardian or proper representation.

X. Conclusion

The Extra-Judicial Settlement with Waiver of Rights is the fastest, cheapest, and most practical mode of transferring inheritance titles in the Philippines when the family is harmonious. When properly drafted—particularly with a pure, gratuitous, pro-indiviso renunciation clause—it completely avoids donor’s tax while achieving a clean, immediate transfer of titles to the heirs who will actually use or manage the properties.

Retaining competent counsel remains indispensable; small drafting errors can cost hundreds of thousands in unnecessary taxes or years of litigation if a forgotten heir later appears.