Sale of Conjugal Property After a Spouse’s Death with Heirs Abroad (Philippine Context)

A practical, soup-to-nuts guide to lawfully selling Philippine conjugal/community property after one spouse dies—when some heirs live overseas. We cover property regimes, who must sign, court vs. out-of-court routes, estate/transfer taxes, paperwork for heirs abroad, minors, and common traps. (Not legal advice.)

1) First principles: what happens to the property at death

The marital property regime dissolves.
- Family Code marriages (default): Absolute Community of Property (ACP) unless there’s a notarized/prenup choosing another regime.
- Pre–Family Code (generally before 3 Aug 1988): default Conjugal Partnership of Gains (CPG), unless spouses opted otherwise.
Split the pot before succession.
- Under ACP: one‐half is the surviving spouse’s share; the other half becomes the decedent’s estate.
- Under CPG: settle conjugal debts/charges, then divide the net conjugal gains—half to the survivor, half to the estate.
Succession applies only to the decedent’s half. That half is co-owned by the compulsory heirs (surviving spouse, legitimate/illegitimate children, etc.) in their legitime/free-portion shares.

Consequence: From death until partition, the property (or the decedent’s ½) is under co-ownership among the surviving spouse and heirs. Any sale needs all co-owners (or a court-authorized representative) to sign.

2) Choose the lawful path to sell

Route A — Extrajudicial Settlement (EJS) with Sale (out-of-court)

Use this when all of the following are true:

No will, no debts (or debts are fully paid/assumed by heirs/buyer);
All heirs are of legal age (minors require a court-appointed guardian, see Route C); and
All heirs agree on the sale and price.

How it works

Heirs (and the surviving spouse) execute a notarized Extrajudicial Settlement of Estate with Sale (or Deed of Absolute Sale attached to an EJS).
Publish the EJS in a newspaper once a week for three consecutive weeks.
Use the EJS + Sale as basis for tax clearances and title transfer directly to the buyer (no need to issue interim titles to heirs first).

Route B — Judicial Administration/Probate (in court)

Required if there is a will, there are unsettled debts, heirs disagree, or any heir is missing/incapacitated.

File probate (if there’s a will) or petition for letters of administration (no will).
The executor/administrator may sell only with court authority, typically to pay estate obligations or when sale is beneficial to the estate.
Buyer takes title upon court approval and post-sale tax/registry steps.

Route C — Guardianship for minors/incapacitated heirs

A minor’s share cannot be conveyed by parents alone when there’s conflict of interest (e.g., selling to a parent or allocating price).
Petition for guardianship and obtain court approval of the sale of the minor’s undivided share (or of the whole, with proceeds allocated to the minor’s estate).

3) Who must sign what

Surviving spouse — signs for his/her own ½ of the conjugal/community property and (if also an heir) for his/her hereditary share in the decedent’s ½.
All heirs (children, or their representatives) — sign for their hereditary shares.
Attorney-in-fact — may sign via SPA (Special Power of Attorney) for heirs abroad; SPA must expressly authorize sale (not just “request documents”).
Executor/administrator — signs if the property is under court administration, with court leave.
Guardian — signs for a minor, with court approval.

Titles in one spouse’s name can still be conjugal/community if acquired during marriage; the other spouse/heirs must still participate unless proven exclusive property (e.g., by donation solely to one spouse with exclusion, or acquired before marriage).

4) Heirs abroad: paperwork & formalities

SPA or Settlement signed overseas must be notarized and apostilled (or consularized if the country is not in the Apostille Convention).
The SPA should:
- Identify the property (TCT/CCT number, location, area);
- Authorize “to sell, sign EJS/Deed of Sale, receive and sign for checks/proceeds, pay taxes, secure clearances, and transfer title.”
Provide valid IDs, proof of relationship (e.g., birth/marriage certificates), and Taxpayer Identification Numbers (TINs) for each heir (needed for taxes/eCAR).
If any heir is unlocatable or refuses, consider judicial partition/administration; don’t fabricate signatures.

5) Taxes & money flows (estate vs. sale)

A) Estate Tax (on the transfer at death, not on the sale)

Tax base: Net estate (gross assets less allowable deductions) as of date of death.
Rate: Generally a single rate (TRAIN law) applies nationwide.
Deadline: Estate tax return is due within one year from death (extensions possible for filing/payment upon meritorious request).
Key deductions typically include a standard deduction and a family home deduction (subject to caps), plus others allowed by law.
Who pays: The estate (from estate funds or advances by heirs).
Output: The BIR issues Electronic Certificate Authorizing Registration (eCAR) for the property.

No eCAR, no transfer. You cannot register a sale (or even partition) without the eCAR covering the decedent’s ½.

B) Tax on the Sale (who sells matters)

Estate sells (before distribution): The estate is the seller. For capital assets (e.g., a non-dealer lot/house), expect capital gains tax (CGT) on the gross selling price or zonal value/assessed FMV (whichever is higher), plus Documentary Stamp Tax (DST), and local transfer tax.
Heirs sell (after distribution): Each heir is seller for his/her share; same CGT/DST/transfer tax mechanics.
Ordinary assets (e.g., if held by a real estate dealer) may be subject to creditable withholding tax (CWT)/income tax instead of CGT.
VAT generally does not apply to isolated sales of capital assets by individuals/estates.

Strategy tip: An EJS with Sale lets you pay estate tax once and CGT/DST once for a direct transfer to buyer, avoiding double retitling.

6) Documents & workflow (checklist)

Civil/Title

Death certificate (PSA)
Marriage certificate (PSA)
Proof of property regime (prenup, if any)
Owner’s duplicate TCT/CCT, tax declaration, lot plan
IDs of parties; TINs of all heirs and buyer

Estate

Inventory of estate assets & liabilities
Estate TIN and estate tax return + supporting schedules
Payment proof and eCAR for the property

Settlement/Sale

EJS/EJS with Sale (notarized; 3-week publication) or court orders (probate/administration/guardianship; authority to sell)
Deed of Absolute Sale (if separate from EJS)
SPA(s) (apostilled/consularized) for heirs abroad
HOA/Condo corp clearance (if applicable)
Latest Real Property Tax (RPT) receipts; zoning clearance if required by LGU
BIR: file CGT/CWT, DST, Certificates of Value, Tax clearance; secure eCAR for the sale
LGU: Local transfer tax, updated tax declaration
Registry of Deeds: present eCARs, deed(s), owner’s duplicate, IDs; cancel old TCT/CCT and issue new title to buyer

7) Minors, unborn heirs, repudiations, and special cases

Minors/unborn heirs: Court guardianship and leave to sell are required; proceeds for the minor are deposited or invested per court order.
Illegitimate children: They are compulsory heirs; include them in the EJS or case.
Unknown/absent heirs: Use judicial administration; court may appoint a special administrator and settle representation issues.
Repudiation/waiver of inheritance: Must be express, in a public instrument, and typically processed with tax implications; do not treat a mere “non-signing” heir as waived.
Encumbrances: Mortgages, adverse claims, lis pendens must be cleared or assumed with creditor consent; disclose to buyer.
Creditors of the estate: If there are debts, use judicial administration (or ensure genuine settlement) because EJS requires an estate “with no outstanding obligations.”

8) Pricing, possession, and risk allocation

Valuation: Buyers/lenders use the higher of contract price vs. zonal/assessed values for tax base; mismatches create additional CGT/DST exposure.
Possession vs. title: If buyer takes early possession, protect with escrow, earnest money rules, and conditions precedent (e.g., issuance of eCARs, court approval, clean title).
Indemnities: Allocate risks for hidden liens, claims by omitted heirs, and creditor challenges (EJS is subject to a two-year lien in favor of estate creditors).

9) Frequent mistakes (and how to avoid them)

Selling without settling the estate. Registry will not register the deed without eCAR(s).
Assuming the titled name controls the regime. Property acquired during marriage is presumed community/conjugal; get the other spouse/heirs to sign or show exclusivity.
SPAs that don’t authorize sale. Use explicit wording; apostille/consularize properly.
Ignoring minors. Any sale touching a minor’s share without court leave risks nullity.
Skipping publication of the EJS. Required for three consecutive weeks.
Forgetting TINs and IDs of heirs abroad. BIR processing stalls without them.
Using “self-adjudication” with multiple heirs. Affidavit of Self-Adjudication is only for a sole heir.
Under-declaring price to lower taxes. Taxes follow the higher of contract price and government values; under-declaration risks deficiency assessments and penalties.

10) Practical playbook (timeline)

Scoping & documents: identify regime (ACP/CPG), list heirs (including abroad/minors), gather title/tax docs, death/marriage certificates.
Estate math: inventory assets/debts; decide EJS vs. court route; obtain estate TIN.
Heirs abroad: secure apostilled SPAs; collect IDs/TINs.
Draft EJS (or file in court) and, if going out-of-court, publish 3 weeks.
BIR estate tax: file/pay; obtain eCAR (estate).
Sale: execute EJS-with-Sale or court-approved sale; pay CGT/CWT, DST, local transfer tax; obtain eCAR (sale).
Transfer: lodge with Registry of Deeds; get new TCT/CCT; update Assessor and RPT records.
Proceeds: remit to heirs per EJS/court order; for minors, deposit per guardianship rules.

11) Quick Q&A

Q: Can the surviving spouse sell the whole property alone? No. He/She can sell only his/her half. The decedent’s half belongs to the estate/heirs and needs their consent or court authority.

Q: We want to sell now; can we finish probate later? If there’s no will, no debts, and all adult heirs agree, use EJS with Sale. If any condition fails, go through court first.

Q: One heir is abroad and unreachable—what now? File for judicial administration (or partition) so the court can appoint an administrator and resolve the sale/partition lawfully.

Q: There’s a minor heir. Can the other parent sign for the child? Not without court approval (guardianship) where there’s a conflict of interest, which exists in almost all estate sales.

Q: Is the buyer safe with EJS? Safer if: (a) publication done; (b) all heirs sign; (c) no known debts; (d) taxes paid; (e) two-year creditor lien disclosed and addressed.

12) Takeaways

Death splits the community/conjugal property: ½ to the survivor, ½ to the estate.
To sell the whole, you need all heirs (or a court-authorized representative) on board.
Pick the right track: EJS with Sale for clean, debt-free estates with adult consenting heirs; court when there’s a will, debts, minors, disputes, or missing heirs.
Heirs abroad can validly participate via apostilled SPA; don’t cut corners.
Estate tax/eCAR first, then CGT/DST, then title transfer—in that order.

Final note

Rules on rates, forms, and procedures (estate/CGT/DST, eCAR processing, transfer taxes) are technical and periodically updated. For significant transactions—especially those involving minors, heirs overseas, or disputes—engage Philippine counsel and coordinate early with a tax specialist and the Registry of Deeds to keep your closing smooth.