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Special Power of Attorney (SPA) by Overseas Heirs in the Philippines
A comprehensive legal guide
1. Overview
When one or more heirs of a deceased Filipino reside or work abroad, they often cannot appear personally in the Philippines to settle the estate, pay taxes, sign deeds, or sell inherited property. Philippine law allows them to delegate those acts through a Special Power of Attorney (SPA)—a written, notarized instrument in which the heir (the principal) authorizes another person (the attorney-in-fact or agent) to perform clearly specified transactions on the principal’s behalf.
2. Legal Foundations
| Source | Key Points |
|---|---|
| Civil Code of the Philippines Arts. 1878–1890 |
Art. 1878 enumerates acts that must be conferred in a special power, including: ― the sale of real property, ― the execution of acts of strict dominion (e.g., partition, mortgage), ― compromise or waiver of rights, and ― creation of any real right over immovables. |
| Rules on Notarial Practice 2020 | Prescribes formalities for notarization and apostille/consular acknowledgment. |
| Apostille Convention (PH acceded 14 May 2019) |
Replaces “red-ribbon” consular authentication for public documents executed abroad. |
| Land Registration Act (LRA) & Property Registration Decree (PD 1529) | Registry of Deeds will not register an EJS or Deed of Sale signed by an agent unless the SPA is duly authenticated. |
| National Internal Revenue Code (NIRC) & BIR Regulations | BIR accepts estate filings signed by an attorney-in-fact if the SPA is apostilled/consularized and accompanied by valid ID of both parties. |
| Rules of Court (ROC), Rule 74 | Governs Extrajudicial Settlement of Estate (EJS) without court intervention when (a) no outstanding debts, (b) heirs are of age or duly represented, and (c) a public instrument is published. |
3. General vs. Special Power of Attorney
- A General power covers all acts of administration but never acts of ownership that Art. 1878 reserves for a special authority.
- A Special power precisely states each act, property, and limitation. In estate matters almost every meaningful transaction—partition, waiver, mortgage, lease > 1 year, sale—must be in an SPA, not merely a general PA.
4. Typical Situations Requiring an SPA
- Signing an Extrajudicial Settlement of Estate (EJS).
- Paying estate tax and securing a Certificate Authorizing Registration (CAR) from the BIR.
- Selling, donating, or mortgaging inherited real property.
- Opening, closing, or transferring bank, stock-brokerage, or Pag-IBIG/SSS accounts of the decedent.
- Processing title transfer at the Registry of Deeds or LRA.
- Collecting insurance proceeds, SSS/GSIS death benefits, or bank deposits under R.A. 3591.
5. Formal Requisites of a Valid SPA
| Requirement | Notes |
|---|---|
| Written Instrument | Hand-printed or type-written on bond paper; multiple originals advisable. |
| Clear Identification of Parties | Full names, civil status, passport/PhilID numbers, and residential addresses of each heir and the attorney-in-fact. |
| Statement of Heirship | Recite that each principal is a compulsory or legal heir of the decedent, quoting the relationship (e.g., “legitimate son”). |
| Specific Powers Granted | Enumerate each act of ownership or administration. Use separate lettered paragraphs (e.g., a-to-i)—courts construe powers strictly. |
| Complete Property Description | For land: TCT/CCT number, area, technical description, tax declaration, location, assessed value. For personal property: bank name & account number, corporation name & share count, vehicle plate & chassis number, etc. |
| Notarization | Principal must sign before a notary public, consul, or other competent officer; every page initialed. Attach IDs or “competent evidence of identity” under Sec. 12, Notarial Rules. |
| Authentication for Use in PH | • Apostille (most jurisdictions). • Consularization at the Philippine Embassy/Consulate in non-Apostille states (e.g., Taiwan, Saudi Arabia as of 2025). |
| Documentary Stamp Tax (DST) | ₱100 fixed DST under Sec. 188, NIRC, affixed when the SPA is first used in the Philippines. |
| If Signed by Spouses | Each spouse signs separately unless conjugal consent is expressly given in a single signature line (“per procuration”). |
| Translation | If executed in a non-English language, attach a sworn English version by a competent translator and authenticate both. |
6. Execution Abroad: Step-by-Step
- Draft the SPA (or use a Philippine lawyer’s template).
- Sign before a notary, consul, or equivalent in the foreign state.
- Secure an Apostille from that state’s Competent Authority or have the Philippine Consulate/Embassy acknowledge it (if the country is not yet an Apostille party).
- Courier the apostilled/consularized original to the agent in the Philippines.
- Attach DST and, where required, have it entered in the notarial register of a Philippine notary for easy presentation to agencies (some RDs still require this formality).
- Use the SPA for BIR estate-tax proceedings, Registry of Deeds, bank, or court.
7. Scope of Powers Commonly Included
| Clause | Purpose |
|---|---|
| Settle estate extrajudicially | Sign EJS, publish notice, secure CAR. |
| Pay estate & related taxes | Authorize appearance at BIR, filing of Form 1801, sign eCAR application. |
| Partition & receive shares | Accept titles, share certificates, bank funds; sign Transfer Certificates. |
| Sell, donate, or encumber property | Execute Deed of Absolute Sale, Conditional Sale, or Real Estate Mortgage. |
| Represent before government agencies | BIR, LRA, DAR, DENR, Housing agencies, SEC, SSS, Pag-IBIG. |
| Engage professional services | Hire surveyors, lawyers, accountants, brokers; pay fees. |
| Open estate bank account | Deposit proceeds, pay obligations, close account upon completion. |
Tip — Avoid one-line catch-all grants (“to do anything necessary”) because Art. 1878 demands specificity for acts of strict dominion.
8. Limitations & Safeguards
- Co-Ownership Rule (Art. 493, Civil Code). Alienation of specific, determinate property requires consent of all co-owners (heirs). An heir may, however, sell or mortgage his undivided ideal share.
- Revocation. A principal may revoke the SPA at will (§1930 Civil Code) by a written Notice of Revocation delivered or published. Death of the principal or agent, insolvency, or interdiction likewise terminates the authority.
- Statute of Frauds. Oral authority is void for land transactions; written SPA must be presented.
- Breach of Fiduciary Duty. The agent is obliged to render an account (Art. 1882) and is liable for fraud or negligence.
- Foreign Capacity Issues. If the heir is a minor or incapacitated, a guardian ad litem must first be appointed by a competent court; the guardian—not the minor—issues the SPA.
- Time Limits. Banking institutions often recognize SPAs only if executed within the last 1–2 years; check each bank’s internal policy.
9. Using the SPA with Philippine Agencies
| Agency / Office | Documentary Requirements |
|---|---|
| BIR | Original SPA + photocopy, apostille page, IDs of principal & agent, EJS or deed, CAR application. |
| Registry of Deeds | SPA (with apostille/consular seal), EJS/Deed signed by agent, CAR, tax clearances, transfer tax receipt, latest tax declaration. |
| Local Treasurer | SPA often required for signing Real Property Tax (RPT) declarations and payment forms. |
| Banks & Insurance Firms | Board Resolution (if corporate Executor), apostilled SPA, Specimen Signature Card, agent’s IDs. |
| Courts (Petition for Settlement) | Verify SPA authenticity; may require testimony of subscribing consul if contested. |
10. Drafting Tips
- Use Philippine English legal style (e.g., “I, Juan Dela Cruz, Filipino, single, of legal age, with residence at …”).
- Quote exact title numbers and lately issued CAR/Titles to avoid re-submission.
- Insert a continuing authority clause (e.g., “This SPA shall remain in force until revoked in writing, notwithstanding the temporary disability or absence of the principal.”).
- Provide for substitution if the named agent cannot act (“with full power of substitution and revocation”), but state that any substitute must be a Filipino resident of good standing.
- Attach a schedule of properties or bank accounts as an annex to prevent the body of the SPA from becoming unwieldy.
- Have each page initialed by the principal and the notarizing officer to satisfy registry clerks.
11. Sample Skeleton
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, JUAN DELA CRUZ, Filipino, single, of legal age, presently residing at 12 7th Ave., New York, NY, United States of America, Passport No. P1234567, do hereby APPOINT, CONSTITUTE, and NAME my sister, MARIA DELA CRUZ-REYES, Filipino, married, of legal age, and a resident of 45 Mabini St., Malolos City, Bulacan, Philippines, as my true and lawful attorney-in-fact, to do and perform the following acts in my name, place, and stead:
(a) To execute, sign, and file an Extrajudicial Settlement of Estate with Waiver of Rights covering the estate of our late mother, ROSA S. DELA CRUZ, who died intestate on 3 March 2025 in San Jose City, Nueva Ecija;
(b) To appear before the Bureau of Internal Revenue (BIR) and pay estate, transfer, and documentary stamp taxes, and to obtain the corresponding Certificate Authorizing Registration;
(c) To sell, transfer, or otherwise dispose of our undivided shares in the parcel of land covered by TCT No. 123456, situated in Barangay Bagong Pook, San Jose City, Nueva Ecija, with an area of One Thousand (1,000) square meters, more or less, together with all improvements thereon, for such price and under such terms as my said attorney-in-fact shall deem advantageous;
(d) To receive and encash the purchase price, to issue receipts therefor, and to deposit the proceeds in account no. 123-456-789 at BPI San Jose branch;
(e) To engage the services of licensed real-estate brokers, lawyers, accountants, surveyors, and such other professionals;
(f) To sign, execute, and deliver all deeds, applications, and instruments and to perform all acts necessary for the full and effectual exercise of the foregoing powers.
HEREBY GIVING and GRANTING unto my said attorney-in-fact full power and authority to do and perform every act requisite or necessary to carry into effect the foregoing powers as fully to all intents and purposes as I might or could lawfully do if personally present, hereby ratifying and confirming all that she shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 1 day of April 2025 in the City of New York, United States of America.
[signature]
JUAN DELA CRUZ
Principal(Notarial acknowledgment block with apostille to follow.)
12. Revocation Procedure
- Write a Notice of Revocation stating SPA title, date, and attorney-in-fact’s name.
- Notarize or apostille the revocation abroad, then serve copies on the agent and third parties who relied on the SPA (banks, RD, BIR).
- Annotate at the Registry of Deeds if the SPA was previously annotated on the title.
13. Frequently Asked Questions
| Q | A |
|---|---|
| Does the SPA expire? | By default, no. It remains effective until expressly revoked, the principal or agent dies, or the purpose is fulfilled. Still, include an end-date if you wish to limit exposure. |
| Can a co-heir who is also the agent sell property to herself? | Generally disallowed under Art. 1491 (self-dealing by agents) unless all principals have given unambiguous consent and price is fair. |
| Do I need multiple SPAs for each transaction? | Not necessary if all contemplated acts are specified in detail in one SPA. |
| What if the country of execution is not party to the Apostille Convention? | Have the SPA notarized locally, then bring it to the Philippine Consulate for consular acknowledgment and red-ribbon. |
| Are scanned copies accepted? | Most agencies demand the apostilled original; courts may accept a certified copy as secondary evidence. |
| Is personal appearance still needed for BIR? | The agent may appear; BIR will honor the apostilled SPA plus valid IDs. Some Revenue District Offices require that the heir’s TIN be secured first. |
14. Best Practices & Risk Management
- Draft under Philippine counsel to ensure compliance with Art. 1878.
- Collect duplicate originals—one for each registry, bank, or agency.
- Check host-country notarial rules (e.g., some U.S. states prohibit notarizing documents in a foreign language).
- Keep track of the apostille or consular seal number; a lost original may be difficult to replace.
- Consider a separate SPA per heir to avoid later conflicts about revocation or substitution.
- Maintain transparency among co-heirs by circulating copies of deeds and official receipts.
15. Conclusion
A properly executed, authenticated, and carefully drafted Special Power of Attorney is the overseas heir’s key to unlocking estate settlement, tax clearance, and property transactions in the Philippines without the cost and delay of a personal visit. By following the statutory requirements, observing strict specificity in the delegation, and safeguarding against abuse, heirs can protect their interests while ensuring a lawful and efficient administration of the estate.
This article is for general educational purposes and does not constitute legal advice. Estate matters can involve nuances—always consult a Philippine lawyer or qualified notary public for tailored guidance.