Below is a comprehensive, practice-oriented primer on selling Philippine land that is still titled in the name of a deceased owner. It weaves together the statutory framework, procedural mechanics, tax considerations, and common pitfalls that practitioners and heirs routinely confront. While every effort has been made to be thorough and current as of 13 June 2025, nothing here substitutes for individualized legal advice.
1. Where ownership “sits” when the owner dies
| Key Doctrine | Take-away |
|---|---|
| Transmission by succession (Art. 777, Civil Code) | The heirs become owners from the moment of death, even before they register their names. What they receive is a pro-indiviso co-ownership over the entire estate until it is partitioned. |
| Torrens indefeasibility (PD 1529) | Until the Registry of Deeds (RD) issues a new Torrens title, the public record still shows the decedent, so third persons will not recognize the heirs’ rights unless they follow the settlement steps below. |
| Buyers beware | A deed of sale signed by only one heir, or executed before the estate is settled, is generally void or at least voidable as to the non-consenting heirs. Serious buyers insist on seeing (a) a Certificate Authorizing Registration (CAR) from the BIR and (b) either a new TCT in the heirs’ name or a single deed combining settlement and sale. |
2. Settling the estate: four procedural tracks
| Track | When to use | Core documents | Court involvement |
|---|---|---|---|
| A. Affidavit of Self-Adjudication (Rule 74 §1) | Only one compulsory heir and no will | • Notarized affidavit • Owner’s death certificate • Publication for 3 consecutive weeks |
None |
| B. Deed of Extrajudicial Settlement (EJS) | ≥2 heirs, either intestate or uncontested will | • Notarized EJS • Bond covering personal property value (often waived if real-property-only) • Publication |
None, but RD will deny registration without proofs |
| C. Judicial Settlement of Estate | Contested wills, unknown heirs, minors without guardians, large debts, or a will requiring probate | • Petition for probate or letters of administration • Court orders approving partition or authorizing sale |
Required; sale usually needs prior court approval |
| D. Small-Estate Summary Settlement (Rule 74 §2) | Gross estate ≤ P10 million and no debts | • Summary petition • Court order approving project of partition |
Limited hearing; faster than full probate |
Timing: Under the Tax Code, the estate tax return must be filed within 1 year of death, but the BIR continues to accept late filings subject to surcharges—unless the heirs opt into the Estate Tax Amnesty, below.
3. Estate-level taxes, fees & the 2025 amnesty
| Item | Normal rule | Current rates / deadlines |
|---|---|---|
| Estate Tax | 6 % of the net estate (value minus deductions) under RA 10963 (TRAIN). | Estate Tax Amnesty (RA 11213 as extended by RA 11956) runs until 14 June 2025. Pay 6 % of net undeclared estate without penalties or interest. |
| Documentary Stamp Tax (DST) on settlement deed | ₱15 for every ₱1,000 of fair market value (FMV) of real property apportioned to each heir. | Same |
| Publication cost | Rule 74 requires publication of the EJS/Self-Adjudication in a newspaper of general circulation once a week for 3 consecutive weeks. | Varies by locale (₱7,500-₱30,000 typical). |
Standard deductions (TRAIN): ₱5 million automatically + up to ₱10 million for a family home + certain funeral, medical, and debt deductions.
4. Simultaneous settlement with sale
When the heirs have an immediate buyer, the practical route is a “Deed of Extrajudicial Settlement of Estate with Absolute Sale.” This single instrument (1) adjudicates the land to the heirs in the first paragraphs and (2) conveys it to the buyer in the later paragraphs. Requirements:
- All heirs sign. If an heir is abroad → consularized SPA; if an heir is a minor → court-appointed guardian + court approval of the sale.
- Notarization before a Philippine notary public.
- Publication (still required).
- BIR clearances (estate tax CAR and capital gains tax CAR—see next section).
- DAR/LMB clearance if the land is agricultural or subject to ancestral domain/forest restrictions.
5. Taxes and fees on the sale itself
| Tax/Fee | Rate | Base | Who pays |
|---|---|---|---|
| Capital Gains Tax (CGT) | 6 % | Higher of (a) gross selling price in the deed, or (b) BIR zonal value, or (c) provincial assessor’s FMV | Seller (the estate/heirs) |
| Documentary Stamp Tax (DST) | 1.5 % | Same base as CGT | Buyer (often shared) |
| Local Transfer Tax | 0.5 % – 0.75 % | Same base | Buyer |
| Registration Fee (RD) | ~₱8,000 – ₱20,000 tiered | Selling price | Buyer |
| Real Property Tax (RPT) arrears | 2 %/month interest | Unpaid RPT | Estate before transfer |
Deadlines: CGT and DST must be paid within 30 days of notarization; otherwise, 25 % surcharge + 20 % per-annum interest. The CAR is released only after payment, so tardiness stalls the whole deal.
6. Transfer of title and tax declaration
File at the RD the original owner’s TCT/OCT, CAR(s), EJS/Sale deed, tax clearances, and valid IDs/TINs.
RD cancels the old TCT and issues:
- A new TCT in the buyer’s name (or a condominium CCT).
Update the tax map by submitting the new TCT + BIR CAR to the Municipal/City Assessor; obtain a new tax declaration.
Update RPT billing at the Treasurer’s Office to ensure future bills go to the buyer.
7. Frequent complications—and how to head them off
| Issue | Why it happens | Mitigation |
|---|---|---|
| Unlocated heirs / heirs in diaspora | OFWs or estranged branches of the family | Publish notice + secure SPAs; consider judicial settlement if consent is impossible. |
| Minors or incapacitated heirs | Rule 97 requires court approval of sale of a minor’s undivided share. | File a guardianship petition early; the same court can approve settlement and sale. |
| Lost Owner’s Duplicate Title | Needed for RD cancellation | File a petition for re-issuance under Sec. 109 of PD 1529; bond may be required. |
| Agrarian reform limits | Land >5 ha or under CLOA/EP cannot be freely sold. | Secure a DAR clearance or verify retention rights; buyers often require a DAR “No Pending Case” certificate. |
| Estate taxes unpaid for decades | Heirs ignored the estate until a buyer showed up. | Avail of Estate Tax Amnesty (deadline 14 June 2025). Pay 6 % of net estate value; no penalties. |
| Overlapping surveys / double titles | Old Cadastral surveys or unregistered parcels | Commission a relocation survey and secure a DENR-approved plan before sale. |
8. Selected jurisprudence worth citing
| Case | G.R. No. | Lesson |
|---|---|---|
| Heirs of Malate v. Gamboa | 11433 (Jan 22 1992) | Sale by one co-heir without others’ consent is void as to the latter’s ideal shares. |
| Spouses Abalos v. Heirs of Gomez | 158989 (June 19 2007) | A buyer in good faith must still trace the seller’s authority; a mere owner’s duplicate under the decedent’s name is a red flag. |
| Republic v. Caguioa | 219715 (Jan 29 2014) | Title immediately transfers to heirs at death, but RD registration is still required to bind third persons. |
| Heirs of Malate v. CA | 129829 (Aug 23 1999) | Extrajudicial settlement without publication is void, but can be cured if later published before an innocent purchaser for value enters. |
9. Practical checklist for heirs (one-page version)
- Gather papers: death certificate, TCT/OCT, tax declaration, IDs/TINs.
- Choose a settlement track (Sections 2–3).
- Compute and pay estate tax (amnesty if eligible).
- Prepare and notarize the deed (EJS, Self-Adjudication, or Court-approved deed).
- Publish notice for 3 weeks.
- Secure BIR CAR(s).
- Pay CGT, DST, local transfer tax.
- Register at RD → new title.
- Update assessor’s records and pay RPT.
- Distribute sale proceeds per agreed shares.
10. Final tips
- Negotiate early with the BIR. Zonal values and deductions can be clarified before filing, avoiding re-computations.
- Avoid partial deeds. A deed mentioning some heirs only invites litigation. Get written waivers from those who do not want to sign.
- Keep deadlines in view. With the Estate Tax Amnesty expiring 14 June 2025, heirs who miss it face surcharges of up to 50 % and interest that can dwarf the tax.
- Due diligence for buyers. Obtain a certified true copy of the title and the deed of settlement; verify publication dates; demand the BIR CAR.
- Professional help saves money. Errors (e.g., wrong lot number, unsigned pages, lapsed tax deadlines) cost far more to correct than a lawyer’s fee.
Bottom line
Selling land still titled in a deceased owner’s name is perfectly feasible in the Philippines—but only after the estate has been properly settled, taxes paid, and the Registry of Deeds satisfied. Heirs who understand (or at least respect) the interplay of succession law, tax rules, and Torrens-system formalities can convert dormant property into liquid proceeds with minimal friction and maximum legal certainty.