When a Filipino citizen passes away leaving property in the Philippines without a will and without outstanding debts, the heirs may skip court proceedings through an Extrajudicial Settlement of Estate (EJS). For heirs residing abroad, the process involves specific legal steps to ensure the document is recognized by Philippine authorities, such as the Bureau of Internal Revenue (BIR) and the Register of Deeds.
1. The Concept of Extrajudicial Settlement
Under Rule 74, Section 1 of the Rules of Court, heirs can adjudicate the estate among themselves via a public instrument (the EJS Deed). If there is only one heir, an Affidavit of Self-Adjudication is filed instead.
For the document to be valid, the following conditions must be met:
- The decedent left no will.
- The decedent left no debts (or all debts have been settled).
- All heirs are of legal age (or minors represented by judicial/legal guardians).
- The settlement is made through a public instrument filed with the Register of Deeds.
2. Notarization Options for Heirs Abroad
Since the EJS must be a "public instrument," it requires notarization. For Filipinos overseas, there are two primary methods to achieve this:
A. Consularization (The "Gold Standard")
The heirs can visit the nearest Philippine Embassy or Consulate.
- Process: The heirs sign the EJS deed in the presence of a Consular Officer.
- Result: The document is notarized directly by the Philippine government. It is automatically treated as a public instrument in the Philippines and does not require an Apostille.
- Benefit: This is often the most straightforward method for recognition by Philippine banks and government agencies.
B. Local Notarization + Apostille
If the heirs cannot visit a Philippine Consulate, they may use the legal system of their host country.
- Process: The document is signed and notarized by a local Notary Public in the foreign country.
- The Apostille Requirement: Since the Philippines is a party to the Hague Apostille Convention, the notarized document must then be authenticated by the "Competent Authority" of the host country (e.g., the Secretary of State in the US or the Foreign, Commonwealth & Development Office in the UK).
- Effect: The Apostille certificate attached to the EJS replaces the old "red ribbon" authentication process. Once apostilled, the document is legally valid for use in the Philippines.
3. Essential Requirements for the EJS Deed
To ensure the EJS is accepted for registration, the document should include:
Complete Identification: Full names and addresses of all heirs.
Description of Properties: * For Real Property: Transfer Certificate of Title (TCT) number and the technical description from the title.
For Personal Property: Bank account numbers, stock certificate numbers, or vehicle chassis numbers.
The Agreement: A clear statement that the heirs are dividing the estate (either equally or in specific shares).
Bond Clause: A statement regarding the filing of a bond (usually required if personal property is involved) as per Rule 74.
4. Post-Notarization Steps in the Philippines
Once the EJS is notarized (and apostilled, if applicable), it must be sent to the Philippines to complete the transfer of title:
| Step | Action | Agency |
|---|---|---|
| 1. Publication | The EJS must be published in a newspaper of general circulation once a week for 3 consecutive weeks. | Authorized Newspaper |
| 2. Tax Filing | File the Estate Tax Return and pay the applicable taxes (or apply for amnesty if available). | Bureau of Internal Revenue (BIR) |
| 3. eCAR Issuance | Obtain the Electronic Certificate Authorizing Registration (eCAR) after tax payment. | BIR |
| 4. Transfer | Pay the Transfer Tax and update the Tax Declaration. | City/Provincial Treasurer |
| 5. Registration | Submit the EJS, eCAR, and proof of publication to issue new titles. | Register of Deeds |
5. Critical Considerations
- Special Power of Attorney (SPA): If the heirs abroad cannot physically process the papers in the Philippines, they must execute an SPA (also notarized/apostilled) authorizing a representative in the Philippines to sign tax returns and deal with the Register of Deeds.
- Disagreement Among Heirs: If even one heir refuses to sign the EJS, an extrajudicial settlement is not possible. The heirs must instead file an ordinary action for Judicial Partition in court.
- Two-Year Contingency: Under Section 4, Rule 74, the estate remains subject to the claims of any creditors, heirs, or other persons unlawfully excluded from the settlement for a period of 2 years after the settlement. A notation of this lien will appear on the new titles.