Here’s a practical, Philippine-specific explainer—written like a mini-treatise—on whether and how someone may sell inherited land even if the Transfer Certificate of Title (TCT) is still in the decedent’s name.

Bottom line (short answer): In the Philippines, heirs can validly sell either their hereditary rights or the land itself even before the title is transferred to their names—but only if the proper estate-settlement documents are executed, the right people sign, required taxes are paid, and the sale is correctly registered. Otherwise the deed may be unenforceable against third parties, expose the parties to later claims, or be voidable.

(This is general information, not legal advice.)

1) Legal foundations you need to know

Succession takes effect at death. Ownership to the decedent’s estate transmits to the heirs from the moment of death, by operation of law (Civil Code Art. 777). Until the estate is partitioned, the heirs are co-owners of the estate in ideal shares.
What a co-owner may sell. A co-owner may dispose of their undivided share but not yet a specific portion of the land (Civil Code Art. 493).
Registration rule (Torrens). For registered land, an unregistered sale is binding between the parties, but it does not bind third persons without registration. Registration also establishes your place in the chain of title (Property Registration Decree, P.D. 1529).
Estate must be settled. Title transfer (and any buyer’s title) ultimately relies on a proper estate settlement—extrajudicial (Rule 74, Rules of Court) if allowed, or judicial (probate/intestate) if needed.

2) The four lawful pathways (before title is put in the heirs’ names)

Path A — Sale of hereditary (successional) rights

What it is: An heir signs a Deed of Assignment/Sale of Hereditary Rights, conveying their share in the entire estate (not the specific lot yet).
Who must sign: Only the selling heir (others need not sign); however, the buyer acquires only that heir’s undivided share, stepping into the co-ownership.
Heirs’ redemption right: If a co-heir sells hereditary rights to a stranger before partition, the other heirs may redeem those rights by reimbursing the price within one month from written notice (Civil Code Art. 1088).
Use cases: Useful when other heirs are unavailable or there’s no immediate settlement.
Limits: Buyer must still ensure the estate is properly settled later; they accept co-ownership risks until partition.

Path B — Extrajudicial Settlement with Sale (one instrument)

What it is: All heirs execute a notarized Deed of Extrajudicial Settlement of Estate with Absolute Sale (EJS-with-Sale) in favor of the buyer.
Who must sign: All heirs (including the surviving spouse as to their conjugal/absolute community share). If any heir is a minor or incompetent, a court-appointed guardian and court approval are required for the sale of the minor’s interest.
Effect: The Register of Deeds may issue a new TCT directly to the buyer, provided estate taxes, CGT/DST, and local transfer taxes are proved paid and the Rule 74 publication requirement is met.
Use cases: Cleanest way to deliver buyer’s title without first issuing a TCT to the heirs.

Path C — Extrajudicial Settlement first, then a separate Sale

What it is: Heirs execute an EJS (or Affidavit of Self-Adjudication, if there’s a sole heir), publish it, pay estate tax, transfer the title to the heirs, then heirs execute a Deed of Absolute Sale to the buyer.
Use cases: Where the buyer or Register of Deeds prefers a two-step chain (Decedent → Heirs → Buyer).

Path D — Judicial settlement / probate with court-approved sale

When required:
- There’s a will (probate is mandatory before any distribution).
- There are disputes, unknown/missing heirs, or debts/claims needing court supervision.
- A minor’s share must be sold (guardian’s sale requires court authority).
Effect: Court can authorize sale of estate realty and approve the partition; documents from the case (order, project of partition) support registration of the buyer’s title.

3) When a pre-transfer sale is not allowed or is risky

If the decedent left a will that hasn’t been probated. Transfers must await or be expressly authorized in the probate case.
If the estate has outstanding debts/claims that require administration. Rule 74 allows EJS only if there is no will and no outstanding debts; in practice, EJS is often used with a two-year window during which creditors and omitted heirs may still claim against the estate/property (Rule 74 Sec. 4).
If not all compulsory heirs sign an EJS-with-Sale (or refuse to recognize the sale). The instrument won’t validly transfer their shares.
If minors’ shares are involved without court approval.
If the property is conjugal/community and the surviving spouse’s share is ignored.
If title shows liens (mortgage, adverse claim, lis pendens) that block clean transfer.
If the land is unregistrable or restricted (e.g., certain public/agricultural/indigenous lands, agrarian reform coverage, homestead patent restrictions).

4) Taxes, fees, and who typically pays

(Exact forms/rates can change; the framework below is stable.)

Estate Tax (BIR Form 1801): Flat 6% of net estate (TRAIN law), with standard deduction and family home deduction (subject to caps). The estate needs a TIN and must secure a (e)CAR to transfer real property from the decedent.
- Deadline: Generally within 1 year from death (extensions possible).
- Without the eCAR, the Register of Deeds will not transfer the real property.
Capital Gains Tax (CGT) (BIR Form 1706) or Creditable Withholding Tax (if the seller is engaged in real estate business or selling an ordinary asset):
- For most individual sellers of capital assets: 6% of the higher of the gross selling price or fair market value (zonal/assessor).
- Who pays: By default, seller, but parties can allocate contractually.
Documentary Stamp Tax (DST) (BIR 2000-OT): 1.5% of selling price or fair market value, whichever is higher. Typically seller, but negotiable.
Local Transfer Tax: Usually 0.5% (outside NCR) or 0.75% (NCR) of the higher of selling price or zonal/assessed value. Usually buyer, but negotiable.
Registration Fees (Register of Deeds) and assessor’s transfer fees.
Real Property Tax (RPT) arrears must be settled before transfer.

EJS-with-Sale tax picture:

Estate tax (Decedent → Heirs by succession), plus
CGT/DST for the sale (Heirs → Buyer), even if both occur within one integrated instrument.

5) Documents & process (by pathway)

A) Sale of hereditary rights

Proof of death & heirship: Death certificate; birth/marriage docs showing relationships.
Deed of Sale/Assignment of Hereditary Rights (notarized).
Notice to co-heirs: To respect Art. 1088, give written notice (start the one-month redemption window).
Later: Proper settlement (EJS or court) to perfect the buyer’s title; taxes will be assessed when the land is ultimately transferred.

What buyer gets now: The seller-heir’s ideal/undivided share, subject to partition and estate obligations.

B) EJS-with-Sale (single instrument)

Heir mapping: Identify all heirs (including surviving spouse’s share under the applicable property regime—absolute community for most marriages after Aug. 3, 1988; many earlier marriages used conjugal partnership).
Draft & notarize the Deed of Extrajudicial Settlement of Estate with Absolute Sale.
Publication: Once a week for 3 consecutive weeks in a newspaper of general circulation (Rule 74).
BIR: File estate tax (Form 1801) → secure (e)CAR for the estate transfer; file CGT (1706) and DST (2000-OT) for the sale; secure (e)CAR for the sale (some RDOs issue combined or sequential CARs).
Register of Deeds: Present TCT, tax clearances, IDs/TINs, original notarized deed, (e)CAR(s), and pay registration fees.
Assessor: Transfer tax declaration and issue new tax declaration to buyer.

C) EJS then separate Sale

Same as B), but you:
1. Do EJS + publication + estate tax → TCT to Heirs; then
2. Sale (CGT/DST) → TCT to Buyer.

D) Judicial

Probate/intestate: Petition, appointment of executor/administrator, inventory, allowance of will (if any), payment of debts, court leave to sell (when needed), project of partition, court order.
Registration: Use the court order and supporting CARs/tax proof to transfer title.

6) Special situations & frequent pitfalls

Minors or incapacitated heirs: A guardian must be appointed; court approval is required to sell a minor’s property interest.
Unknown/missing heirs: Use judicial settlement; any EJS that omits an heir is vulnerable to challenge within two years (Rule 74), and even beyond in cases of fraud.
Spousal share: In community/conjugal regimes, the surviving spouse owns their own one-half; only the decedent’s half goes to the estate.
Heir selling “the whole property” alone: They can at most sell their share. A deed purporting to sell 100% without the others’ consent won’t transfer the other shares; the buyer risks litigation.
Unregistered land / tax-dec only: You can sell possessory/ownership rights, but regularizing title later may require confirmation or judicial processes. Due diligence is critical.
Agrarian/ancestral domain/public land issues: Special statutes may bar or condition transfers.
Liens and lis pendens: Check encumbrances; a pending case (lis pendens) or mortgage can derail transfer.
Publication & bonds under Rule 74: Publication is mandatory for EJS; practice on bonds varies (often relevant to personal property), but the two-year creditor/omitted-heir recourse always remains.

7) Due diligence checklist (seller & buyer)

Buyer should:

Get a Certified True Copy of the TCT/CCT; read all encumbrances.
Verify heirs and marital property regime of the decedent; obtain civil registry documents.
Confirm whether there is/was a probate/intestate case.
Inspect the property; check occupants/tenancies and RPT arrears.
Engage a surveyor if boundaries are uncertain; compare technical descriptions.
Ask for BIR proof of estate tax filing and (e)CAR(s) (or at least readiness to process).
If buying hereditary rights, notify co-heirs in writing (protects position vis-à-vis Art. 1088).

Seller/heirs should:

Map all heirs (including illegitimate children and surviving spouse).
Decide on Path A–D above.
Prepare IDs, TINs, civil registry papers, death certificate, latest realty tax receipts, and title.
Budget for estate tax, CGT, DST, local transfer tax, registration fees.
If any heir is abroad, arrange apostilled consularized SPA to sign.
For minors, file for guardianship and court leave to sell.

8) Practical “what-if” guide

Only one heir is willing to sell now; others refuse. → That heir may sell only their undivided hereditary rights (Path A). Buyer becomes a co-owner with the nonselling heirs.
All heirs agree but don’t want two transfers. → Use EJS-with-Sale (Path B). Title can go directly to the buyer once taxes are cleared and deed is registered.
There’s a will. → Probate first. Any sale requires either completion of probate or court approval in the probate case (Path D).
A minor is an heir. → Get a guardian and court approval to sell the minor’s share (Path D or a court-approved component within EJS).
There are estate debts. → Safer to open an intestate/probate proceeding; court may authorize a sale to pay debts (Path D). Using EJS while debts remain can expose heirs to later claims.

9) Sample clause ideas (for your lawyer to refine)

Sale of Hereditary Rights (essentials): “The Assignor, being an heir of the late [Name], hereby sells, assigns and transfers to the Assignee all hereditary rights and participations which the Assignor may now have or hereafter acquire in the estate of [Name], including the Assignor’s undivided share in the parcel(s) of land covered by TCT No. [____], subject to estate obligations, partition, and the co-heirs’ right of redemption under Article 1088 of the Civil Code.”
EJS-with-Sale (key recitals): Recite: (i) decedent’s death; (ii) list of heirs and marital property regime; (iii) assertion of no will/no debts (or how debts were settled); (iv) description of property; (v) partition if any; (vi) absolute sale to Buyer; (vii) undertaking to comply with Rule 74 publication and taxes.

10) Core legal bases (for quick orientation)

Civil Code:
- Art. 777 (succession operates at death)
- Art. 493 (co-owner may alienate their undivided share)
- Art. 1088 (co-heir redemption of hereditary rights sold to a stranger)
- Warranties and effects of sale (Title VI on Sales) apply unless modified by a “sale of rights” nature.
Rules of Court, Rule 74:
- Sec. 1 (extrajudicial settlement by public instrument; publication)
- Sec. 4 (two-year window for claims by creditors/omitted heirs; liability of distributees)
Property Registration Decree (P.D. 1529):
- Registration requirements; effect of registration and annotation.
Tax laws/regulations (TRAIN and related BIR rules):
- Estate tax at 6% of net estate; (e)CAR required to register transfer from decedent.
- CGT at 6% (capital assets), DST at 1.5%, and local transfer tax (typical NCR 0.75%, others ~0.5%).

Quick decision tree

Is there a will? → Probate (Path D).
All heirs (incl. surviving spouse) willing and of full age?
- Yes → Choose EJS-with-Sale (Path B) or EJS then Sale (Path C).
- No → A willing heir may sell hereditary rights only (Path A) or open judicial settlement (Path D).
Any debts/minors/disputes? → Favor judicial route (Path D).
Ready to pay estate + sale taxes and register? → Proceed; without taxes/CARs, the buyer won’t get a clean TCT.

If you want, I can turn this into a fill-in-the-blanks EJS-with-Sale or Sale of Hereditary Rights template tailored to your facts (names, title number, area, marital regime), plus a step-by-step filing checklist you can hand to your documenter.