The Role of a Special Power of Attorney in an Extrajudicial Settlement of Estate
Philippine Legal Perspective
1 | Why the SPA Matters
An extrajudicial settlement of estate (EJS) allows heirs to divide a decedent’s estate without court proceedings when the requisites in Rule 74 §1 of the Rules of Court are met (no outstanding debts, heirs are of age or duly represented, and a public instrument is executed). But the moment an heir cannot personally sign—because she is overseas, incapacitated, a minor, or simply chooses to delegate—a Special Power of Attorney (SPA) becomes indispensable. The SPA is the legal bridge that preserves the voluntary, out-of-court character of the settlement while ensuring that acts of dominion are done only by persons specifically authorized in writing, as Articles 1878, 1317 and 1390 of the Civil Code require.
2 | Statutory and Regulatory Anchors
| Source | Key rule for EJS-related SPAs |
|---|---|
| Rule 74, Rules of Court | Requires a “written authority” when an heir is represented in the deed of settlement. |
| Civil Code Art. 1878 (1), (5), (12) | Acts of strict dominion (partition, sale, mortgage, waiver, compromise) demand an SPA. |
| Notarial Law (R.A. Notarial Rules) | SPA must be a public instrument acknowledged before a notary public. |
| Apostille Convention (PH accession 2019) | SPAs executed abroad need Apostille (or consular authentication if the country is not a party). |
| BIR Rev. Regs. No. 12-2023 | Accepts SPAs for estate-tax filing; attorney-in-fact must present IDs and TIN. |
| Land Reg. Auth. Cir. No. 35-2024 | SPA must be annotated on titles if it covers conveyance of registered land. |
3 | Typical Situations Requiring an SPA
Heir Abroad – Overseas Filipino issues an SPA so a relative can sign the Deed of Extrajudicial Settlement (DOES), estate-tax returns, and BIR CAR applications.
Minor Heirs – Guardian (court-appointed or parent) executes the settlement on the minor’s behalf; the letters of guardianship or SPA is attached.
Heir under Disability – SPA plus medical certificate allow an agent to act.
Banks & Stockbrokers – Institutions often insist on an SPA naming them specifically before they release deposits or shares.
Subdivision & Sale After Partition – If the heirs agree that one heir will handle transfer certificates, subdivision surveys, or a subsequent sale, that authority must be in the SPA (Art. 1878 (5) & (12)).
4 | Essential Clauses of an EJS-Focused SPA
Full particulars of principal and attorney-in-fact (names, civil status, citizenship, passport/ID, address).
Recital of the decedent’s death and basic estate facts.
Specific powers, e.g.:
- “To sign, execute and deliver the Deed of Extrajudicial Settlement with Waiver of Rights covering the estate of the late …”
- “To file and sign all estate-tax returns, secure a Certificate Authorizing Registration, pay taxes and fees, and obtain Tax Identification Numbers of heirs.”
- “To appear before the Register of Deeds and BIR, to receive titles and documents.”
- “To sell, convey or mortgage the properties allotted to my share at not less than PHP ______.” (if intended).
Special waiver/quitclaim authority where an heir is surrendering a share.
Duration / revocation clause.
Ratification & notarization (or Apostille).
Tip: Do not lump the authority into a General Power of Attorney; Art. 1878 demands special powers. A generic GPA will not bind the principal in an EJS.
5 | Formalities & Registration
Public Instrument – Must be acknowledged before a Philippine notary or a Philippine consular officer abroad (Notarial Rules; Vienna Convention on Consular Relations).
Apostille/Authentication – Mandatory if executed abroad; staple the Apostille to the SPA.
Annexure – Attach the SPA to the DOES submitted to:
- BIR (for estate-tax clearance)
- Register of Deeds (for annotation on TCT/OCT)
- Local Treasurer (for transfer-tax clearance)
Documentary Stamp Tax – PHP 100 fixed DST per SPA (Sec. 188, NIRC).
Annotation of Revocation – File a sworn Notice of Revocation and cause its annotation on relevant titles to bind third persons (LRA Cir. 35-2024).
6 | Lifespan, Revocation & Extinguishment
- Revocable ad nutum by the principal before accomplishment (Art. 1920).
- Extinguished by death of the principal unless the SPA is coupled with an interest already conveyed (Art. 1930); in estate context, death is inapplicable because the estate is already open.
- Constructive notice: Revocation must be in a public instrument and, if land is involved, annotated on the title; otherwise, innocent purchasers may rely on the recorded SPA.
7 | Tax & Fee Touchpoints
| Stage | Governing rule | Usual cost |
|---|---|---|
| SPA execution (PH) | Doc. Stamp Tax Sec. 188 | PHP 100 |
| Consular notarization | DFA-promulgated rates | ≈ USD 25/equivalent |
| Estate-tax return filing | NIRC Title III | Estate tax based on net estate (6 %) |
| Transfer & registration | Local Gov’t Code, LRA fees | Transfer tax (≤ 1 %), registration fees (ad valorem) |
8 | Jurisprudential Highlights
| Case | G.R. No. & Year | Doctrine |
|---|---|---|
| Heirs of Malate v. Gamboa | G.R. 158803 (2010) | EJS void where an heir’s signature was forged and no SPA existed; land titles cancelled. |
| Abalos v. Heirs of Gomez | G.R. 150353 (2005) | SPA must expressly authorize sale; silent SPA cannot validate agent’s conveyance of hereditary share. |
| Spouses Abalos v. Spouses Phil. National Housing Authority | G.R. 158406 (2005) | Partition effected by SPA is valid if all heirs consented; but SPA forged = void. |
| Civil Code Art. 1390 jurisprudence | Multiple cases | Voidable contract arises if the attorney-in-fact exceeded or lacked written authority in acts of strict dominion. |
9 | Common Pitfalls & How to Avoid Them
- Using a “General” instead of “Special” PA ➔ Always enumerate powers.
- No authority to waive or sell ➔ Include specific sale/waiver language if needed.
- Partial list of properties ➔ List or attach a schedule of all estate assets.
- Non-apostilled foreign SPA ➔ Check if country is in Hague Apostille list; otherwise, consularize.
- Unclear consideration limits ➔ State minimum sale price or require co-heir written concurrence.
- Failure to annotate revocation ➔ Causes land registry to treat SPA as subsisting; leads to fraud.
10 | Drafting & Filing Checklist
- Verify rule-74 requisites (no debts, etc.).
- Collect IDs and marital status of principal & agent.
- List all estate assets with TCT/CCT numbers & tax decs.
- Insert tax filing and BIR CAR retrieval powers.
- Insert waiver or sale authority if contemplated.
- Notarize (or apostille).
- Pay PHP 100 DST.
- Attach SPA to DOES; file with BIR, treasurer, RD.
- Secure new titles; annotate if SPA still needed for future sale.
- If SPA fulfilled, execute Revocation or include automatic expiry clause.
11 | Conclusion
In Philippine practice, an extrajudicial settlement collapses without valid, written, notarized authority for every heir who does not sign personally. The Special Power of Attorney is more than a formality: it is a substantive safeguard demanded by both statute and jurisprudence to protect creditors, co-heirs, buyers, and the Torrens system from unauthorized acts. Draft it with specificity, observe notarization and apostille rules, file and register it meticulously, and revoke it promptly once its mission is complete. Properly wielded, the SPA keeps the settlement extrajudicial, efficient, and legally unassailable.