Selling real property after a spouse dies is rarely just a “Deed of Sale” problem. In the Philippines, the buyer usually needs a clean chain of title, and the Register of Deeds (RD) generally will not transfer ownership if the Transfer Certificate of Title (TCT) remains in the name of the deceased (or still reflects the old marital property situation without settling the estate). The legal bridge between “the owner died” and “the property can be sold and transferred” is estate settlement—often through extrajudicial settlement (EJS), but sometimes through judicial settlement.

This article explains what extrajudicial settlement is, when it is required (or practically unavoidable) to sell, when it is not allowed, and how it intersects with property relations between spouses, inheritance shares, estate tax, and land title transfer.

1) Core idea: Death changes ownership and creates an estate

Upon death, a person’s properties, rights, and obligations (with exceptions) become part of an estate. The heirs do not automatically get a registrable title to land just because they are heirs. Until the estate is settled:

The deceased’s registrable rights in real property remain recorded under the deceased’s name; and
The heirs’ rights are typically treated as ideal/undivided interests (a form of co-ownership) in what remains after the proper determination of shares and obligations.

So, for titled land, a buyer normally cannot be registered as the new owner unless the estate has been settled and taxes and registration requirements are satisfied.

2) What is Extrajudicial Settlement (EJS)?

Extrajudicial settlement is a method of settling an estate without going to court, allowed under Rule 74 of the Rules of Court, primarily when:

The decedent left no will (intestate),
The decedent left no debts (or debts are settled/assumed in a way acceptable to law and practice), and
The heirs are all of age, or if there are minors/incapacitated heirs, they are duly represented (through judicially recognized representation/guardianship arrangements in practice, because voluntary waiver/partition involving minors is heavily restricted).

EJS is commonly done by:

Deed of Extrajudicial Settlement and Partition (multiple heirs), or
Affidavit of Self-Adjudication (only one heir).

EJS may also be combined with a sale:

Deed of Extrajudicial Settlement with Sale (heirs settle and simultaneously sell to a buyer), or
Separate instruments: first EJS → transfer to heirs → then Deed of Sale.

3) When is EJS “required” to sell?

A. If the property is titled and the title is in the deceased spouse’s name (alone or with spouse)

Practically, yes—some form of settlement is required. If the TCT is still in the name of the deceased (or “Spouses X and Y,” where Y is deceased), the RD generally requires an estate settlement instrument (extrajudicial or judicial), plus tax clearances, before it will register:

transfer to heirs, or
transfer directly to a buyer via settlement-with-sale.

B. If the surviving spouse is NOT the only person entitled to inherit

If there are children (legitimate or illegitimate) or other compulsory heirs entitled under the law, the surviving spouse cannot validly convey what belongs to the estate without the participation of the other heirs (or a proper judicial process). In these cases, the clean path to sale is typically:

EJS signed by all heirs (or their duly authorized representatives), often with sale.

C. If the buyer (or bank) demands it

Even where a theoretical workaround exists (e.g., selling only the surviving spouse’s own share), buyers and lenders typically insist on settlement because:

the buyer wants full ownership, not an undivided interest; and
the RD and BIR processes for transfer usually hinge on proper settlement and tax compliance.

D. If the property must be transferred to heirs first to determine and convey shares

This is common when:

the property regime must be liquidated (ACP/CPG), and/or
multiple heirs must be identified, and/or
the property must be partitioned or its proceeds allocated.

4) When EJS is NOT allowed (and judicial settlement becomes necessary)

Even if everyone wants an EJS, it is not always legally available or practically acceptable.

A. When the decedent left a will (testate estate)

If there is a will, settlement is generally testate and involves court proceedings (probate). Extrajudicial settlement is not the ordinary route.

B. When there are outstanding debts of the estate (in a way that makes EJS improper)

Rule 74’s extrajudicial route is conditioned on the estate having no debts (or at least no unsettled debts). If there are creditors, disputes, or substantial unresolved obligations, the safer and often necessary route is judicial settlement to protect creditors and ensure proper payment.

C. When heirs are minors or incapacitated and their rights are affected

Minors cannot simply “sign” through informal representation for partition/waiver/sale. Transactions that prejudice minors’ inheritance rights often require court authority (e.g., sale of minors’ property/interest). If a minor heir exists and the sale involves their share, a court process is commonly required.

D. When heirs are unknown, missing, disputing, or refusing to sign

If an heir is missing, uncooperative, or there is a dispute on heirship or shares, EJS collapses because it depends on agreement. Court settlement becomes the tool to:

determine heirs,
compel accounting,
authorize sale, or
partition/settle contested rights.

E. When the property situation is complicated by adverse claims, overlapping titles, or family litigation

Even if an EJS is executed, it may not “cure” deeper title or ownership problems. Courts may be needed where ownership itself is contested.

5) Why marital property regime matters before selling

To know what can be sold—and who must sign—you must determine what portion belongs to:

the surviving spouse (as their own property share), and
the estate of the deceased (to be inherited by heirs).

Common regimes

A. Absolute Community of Property (ACP)

For most marriages without a valid prenuptial agreement, property acquired during marriage is generally community property (with important exclusions). Upon death:

The community property is effectively divided: ½ belongs to the surviving spouse, ½ belongs to the estate (subject to settlement and obligations).

B. Conjugal Partnership of Gains (CPG)

For certain marriages under older rules or where applicable, generally:

The “gains” or conjugal properties are divided similarly: ½ to surviving spouse, ½ to the estate, after liquidation.

C. Separation of Property (by agreement or court)

Each spouse owns separate property. Upon death:

Only the deceased’s properties form the estate (plus any share in jointly owned property).

Practical effect on a sale

Even if a property is titled in the name of the deceased spouse alone, it may still be:

partly owned by the surviving spouse (if conjugal/community), or
wholly owned by the deceased (if exclusive property).

But the RD and BIR usually still require settlement documentation to reflect liquidation and determine the estate portion and heirs’ rights before a clean transfer.

6) Who are the heirs, and why it affects the sale

Under Philippine succession rules, compulsory heirs have protected shares (legitime). Common scenarios:

A. Deceased spouse leaves legitimate children

Children inherit in their own right.
The surviving spouse is also an heir and shares with the children.

Sale implication: All heirs (spouse + children) typically must participate in EJS and sale, unless there is a court order or a legally sound authority arrangement.

B. Deceased spouse leaves illegitimate children

Illegitimate children can inherit (with rules on shares relative to legitimate heirs). Their participation is crucial.

Sale implication: Failure to include illegitimate children can expose the transaction to future challenge and can derail transfer or later title security.

C. Deceased spouse leaves no children but leaves parents (ascendants)

Ascendants may inherit with the surviving spouse in certain intestate settings.

Sale implication: The surviving spouse alone may not be enough.

D. Deceased spouse leaves no children and no ascendants

The surviving spouse may become the sole heir in some circumstances.

Sale implication: This may qualify for Affidavit of Self-Adjudication (still with tax and publication/annotation requirements in practice).

7) The “co-ownership” problem: what heirs own before settlement

Before partition, heirs generally own the estate property in common (ideal shares). This creates sale complications:

One heir cannot sell the entire property alone.
An heir can generally sell only their undivided interest, but buyers rarely want that.
Selling the whole property is easiest when all heirs agree and sign, usually through:
- EJS with sale, or
- EJS then sale.

8) EJS with Sale vs. EJS then Sale

Option 1: Extrajudicial Settlement with Sale

One document (or integrated set) where the heirs:

declare themselves as heirs and settle the estate extrajudicially, and
convey the property directly to the buyer.

Advantages

Streamlined: avoids transferring first to heirs then selling.
Often used when the heirs want cash and do not need the title in their names first.

Risks / watch-outs

Must be carefully drafted so the settlement portion is valid.
Still subject to creditor claims within the legal protection periods and to proper publication/annotation.
Buyer must be comfortable with settlement-based transfer and the annotations.

Option 2: EJS then Deed of Sale

Two-step approach:

EJS and transfer title to heirs (or at least annotate and comply with estate tax), then
execute Deed of Sale from heirs to buyer.

Advantages

Cleaner in some RD/BIR workflows.
Buyer sees title already in heirs’ names.

Disadvantages

More steps, possible higher incidental costs, more processing time, and more chances for delays.

9) Publication, annotation, and the “two-year” exposure under Rule 74

Rule 74 requires safeguards because EJS avoids court supervision.

Publication

A notice of the extrajudicial settlement is generally required to be published in a newspaper of general circulation (commonly once a week for three consecutive weeks in practice, consistent with typical implementation). This is intended to notify creditors and interested parties.

Annotation on the title

The RD typically annotates the EJS on the title. This creates visibility that transfer occurred through extrajudicial settlement.

The two-year period

Rule 74 provides a two-year period within which persons deprived of lawful participation (e.g., omitted heirs, creditors) may assert claims against the estate or the distributed property, subject to legal nuances.

Practical takeaway for buyers: Titles derived from EJS can carry perceived “risk” until the period lapses, which is why some buyers/lenders require extra assurances.

10) Estate tax, BIR clearances, and why you can’t skip them

Even if everyone signs, selling and transferring titled real property typically requires BIR compliance.

Estate tax

Philippine law imposes estate tax on the transfer of the decedent’s estate to heirs. Key points in practice:

Estate tax returns and supporting documents must be filed.
The BIR issues an Electronic Certificate Authorizing Registration (eCAR) (or its current equivalent) as authority for the RD to register transfers involving estate property.
Without the eCAR, the RD generally will not transfer title.

Other taxes

A sale also triggers:

Capital gains tax (or possibly a different tax treatment depending on classification and transaction specifics),
Documentary stamp tax,
Local transfer tax, and
Registration fees.

Important distinction: Estate tax is about transferring the decedent’s property to heirs; sale taxes are about transferring from sellers to buyer.

11) Typical checklist: documents and steps (high-level)

Exact requirements vary by RD, BIR district, and local government, but commonly:

Step 1: Establish the family and heirs

Death certificate
Marriage certificate (if relevant)
Birth certificates of children
IDs and tax identification numbers
Proof addressing legitimacy issues when relevant (and recognition/filiation issues when applicable)

Step 2: Determine property classification and shares

TCT/Condominium Certificate of Title
Tax declaration
Deeds showing acquisition (to assess whether exclusive or conjugal/community)

Step 3: Prepare settlement instrument

Deed of Extrajudicial Settlement (and Partition, if dividing)
Or Affidavit of Self-Adjudication (if sole heir)
If selling: EJS with Sale or separate Deed of Sale
Special powers of attorney if heirs sign through representatives (with strict formality)

Step 4: Publication and compliance actions

Newspaper publication requirements and proofs
RD annotation requirements

Step 5: BIR estate tax filing and eCAR

Estate tax return, supporting documents, valuations, and clearances
Payment and issuance of eCAR

Step 6: Local taxes and RD transfer

Local transfer tax payment (as applicable)
Registration of deed(s)
Issuance of new title to buyer

12) Common scenarios and what usually happens

Scenario 1: Title is “Spouses A and B”; B dies; they have children

Property is typically conjugal/community (unless proven exclusive).
Surviving spouse owns their half; the other half is the estate.
Children inherit from the estate half, together with the spouse’s inheritance share.

Usual route: EJS (all heirs) + sale (either integrated or separate), plus estate tax and eCAR.

Scenario 2: Title is only in the deceased spouse’s name; surviving spouse insists “I can sell because I’m the spouse”

Not automatically true. If the property is conjugal/community, spouse has a share; but the estate portion belongs to heirs collectively.
If there are children, the spouse cannot dispose of the estate portion alone.

Usual route: EJS + sale (or judicial settlement if heirs can’t agree / minors / disputes).

Scenario 3: Surviving spouse is the only heir

This may qualify for Affidavit of Self-Adjudication.
Still requires tax compliance and RD processes before a buyer can be registered.

Usual route: Self-adjudication + tax/eCAR + sale/transfer.

Scenario 4: There is a minor child heir and the property will be sold

Selling the minor’s inheritance share typically requires court authority.
EJS alone is often insufficient for a clean, defensible sale.

Usual route: Judicial process to authorize sale (often within a settlement proceeding), then transfer.

Scenario 5: One heir is abroad or unavailable

Possible via SPA, but formality and authentication issues matter (consularization/apostille depending on jurisdiction and current practice).
If an heir is truly missing or refuses to sign, court becomes the realistic path.

13) Pitfalls that can invalidate or destabilize the sale

Omitted heirs (including illegitimate children)
Misstated property regime (treating exclusive as conjugal or vice versa)
Failure to publish/annotate properly where required in practice
Skipping estate tax and trying to transfer directly by sale
Using “waivers” loosely (a waiver can be treated as a donation, potentially triggering different tax consequences)
Selling while estate debts exist without proper settlement mechanisms
Improper SPAs or signatures (especially when heirs are abroad)
Assuming the surviving spouse can sell everything without the heirs’ participation

14) The bottom line rule

You usually need extrajudicial settlement (or judicial settlement) before selling a deceased spouse’s real property when:

The property is still titled in the deceased spouse’s name (or in “spouses” where one is deceased), and
There are heirs other than the surviving spouse, and/or
You want the buyer to receive a registrable title and avoid inheriting co-ownership disputes.

When EJS is unavailable—because of a will, debts, minors’ interests, disputes, missing heirs, or refusal—judicial settlement (often with court authority to sell) is the proper route.

15) Short practical guide: “Do we need EJS?”

Most likely yes if you answer “yes” to any of these:

Is the title still in the deceased spouse’s name (alone or as “spouses”)?
Are there children or other heirs besides the surviving spouse?
Will the buyer require a clean title transfer through the RD?
Will the property be sold as a whole (not just an undivided share)?

Most likely no (or not EJS, but court) if:

There is a will, or
There are minors whose shares will be sold, or
There are disputes, missing heirs, or unresolved debts that cannot be safely handled extrajudicially.