Title Transfer Without an Extrajudicial Settlement of Estate in the Philippines

“When a person dies, ownership of his or her property passes instantly to the heirs, but the title remains in the decedent’s name until the law‑mandated settlement process is shown to the government registries. The usual path is an extrajudicial settlement (EJS) under Rule 74 of the Rules of Court, yet it is not the only lawful route. Below is a panoramic guide to every alternative, the documents and fees involved, and the practical risks of bypassing an EJS.”

1. Governing Law at a Glance

Subject	Key Statutes / Rules
Succession & co‑ownership	Civil Code (Arts. 777–842, 960‑1101; 1620‑1623)
Extrajudicial settlement	Rule 74, Rules of Court; Sec. 1, Rule 74 (Affidavit of Self‑Adjudication or Deed of Extrajudicial Settlement)
Judicial probate/intestate proceedings	Rules of Court, Special Proceedings (Rules 73–91)
Estate taxes & CAR	National Internal Revenue Code (NIRC), as amended; RR No. 12‑2018 (estate tax regulations)
Title transfer & annotation	Property Registration Decree (PD 1529); Land Registration Authority (LRA) circulars
Publication & lien	Sec. 3 & 4, Rule 74 (Notice in a newspaper; 2‑year lien in favor of creditors and un‑mentioned heirs)

Note: leave statutes unitalicized when quoting verbatim provisions in pleadings.

2. Why an Extrajudicial Settlement Is the “Default”

No outstanding debts – Rule 74 allows EJS only if the decedent left no known creditors.
All heirs are of age (or duly represented).
Real/Personal property of any value – The old ₱10,000 limit under Act 496 no longer applies; even large estates may use EJS, subject to estate tax.
Publication & registration required – The notarized Deed (or Self‑Adjudication) must be published once a week for 3 consecutive weeks and annotated on the title.

These safeguards explain why Registers of Deeds habitually insist on an EJS before cancelling the decedent’s Transfer Certificate of Title (TCT) or Condominium Certificate of Title (CCT). Still, Philippine law recognizes four other pathways to “prove” transmission of ownership.

3. **Four Scenarios Where Title Can Be Transferred Without an Extrajudicial Settlement**

3.1 Judicial Settlement of Estate (Probate or Intestate)

When:

There are debts or complicated claims;
Heirs cannot agree; or
A will is contested, lost, or requires probate under Art. 838.

Process outline:

Petition for issuance of letters testamentary (if there’s a will) or letters of administration (if none) in the proper Regional Trial Court (Special Proceedings).
Court appoints an executor/administrator, publishes notice to creditors (Rule 86) and settles claims.
After liquidation, the court issues a “Decree of Distribution” specifying how each parcel goes to each heir.
The decree, plus the BIR Certificate Authorizing Registration (CAR), is presented to the RD; the new TCT/CCT is issued directly in the heirs’ names (or in a buyer’s name, if sold with court approval).

No EJS is needed because the court order itself is a sufficient muniment of title.

3.2 Affidavit of Self‑Adjudication by a Sole Heir

Legal basis: Sec. 1, Rule 74 ¶1. If there is only one lawful heir, he or she may execute a notarized Affidavit of Self‑Adjudication (ASA), publish it, pay estate tax, then register it. RD will cancel the old title and issue a new one solely to that heir. Because Rule 74 still governs, some practitioners view this as an “EJS”. Registering offices, however, treat it as distinct, and many clients loosely call it “transfer without extrajudicial settlement.”

3.3 Direct Sale or Donation of the Undivided Estate

Upon death, the estate becomes a co‑ownership (Art. 1078). Heirs may:

Sell the property as co‑owners to a third party before any partition; or
Donate their undivided shares.

Requirements at the RD:

Document	Purpose
Deed of Absolute Sale (or Donation) signed by all heirs (plus surviving spouse)	Shows consent of every co‑owner
BIR CAR for estate + BIR CAR for sale/donation	Estate tax first, then donor’s or CGT/DS tax
Extra-judicial Partition not required	Co‑owners may alienate the entire property together

Practical tip: The buyer’s title will carry the annotation that it was acquired “from the heirs of ___”. A future omitted heir may still assail the sale; thus buyers often require heirs to execute a separate EJS first for certainty.

3.4 Transmission by Will (Devise or Legacy) + Probate Decree

If a notarial or holographic will validly devise (real property) or legacy (personal property) to a named beneficiary, no EJS is filed—probate suffices. Once the will is allowed:

Executor submits an Inventory & Project of Partition.
Court issues a probate decree specifying the devisee/legatee.
Title may be transferred directly to the beneficiary upon presentation of the decree and CAR.

4. Administrative Milestones Common to All Routes

Stage	Where	Core Documents/Fees
Estate Tax Return	BIR RDO of decedent’s domicile	Estate Tax Return (BIR Form 1801), TIN of estate/heirs, CAR fee (₱100), estate tax (6 % of net estate)
Clearance/Certification	BIR	CAR (formerly eCAR) – mandatory before RD acts
Registration & Annotation	Register of Deeds where property is located	CAR, deed or court decree, owner’s duplicate title, official receipts (RD fees & IT fee)
Local Transfer Tax	LGU Treasurer’s Office	0.5 %–0.75 % of zonal/fair market value
Publication (if Rule 74 instrument)	Newspaper of general circulation	3 consecutive weeks; keep Affidavit of Publication

5. Risks & Liabilities When Skipping an EJS

Unpaid Debts Surface – Under Sec. 4, Rule 74, heirs (or their transferees) remain solidarily liable to creditors and undisclosed heirs for 2 years from registration; courts may annul the transfer.
Omitted Heir’s Action for Reconveyance – An heir left out of a direct sale can sue for reconveyance or collation within 10 years (Art. 1144).
Tax Exposure – Registering offices will not issue CAR unless estate tax is settled, whether or not there is an EJS. Penalties: 25 % surcharge + 6 % interest per annum.
RD Refusal – Many RDs require some settlement instrument. A buyer’s deed alone often triggers a memorandum requiring proof of settlement or probate.
Criminal Liability (Art. 316, RPC) – Concealment of a co-heir can amount to swindling and other deceits.

6. Frequently Asked Questions

Question	Answer in Brief
Can we just have the Register of Deeds “update” the title when the decedent left only one lot and no debts?	Yes, through Affidavit of Self‑Adjudication + publication + CAR.
Our buyer insists on a clean title before paying. Do we really need a full EJS if all siblings will sign the sale anyway?	Legally, no—co‑owners may sell undivided property—but for marketability and financing, executing a Deed of EJS followed by the sale is safer.
What if one heir is abroad?	He/she may sign via apostilled SPA or consularized Special Power of Attorney; must still be indicated as co‑vendor or co‑heir.
Is there a “small‑estate” summary procedure?	Only for estates ≤ ₱10,000 in the Rules, but in practice the BIR and RD no longer apply that cap; Rule 74 instruments work regardless of value.
Can I register an informal family agreement written on plain paper?	RD will deny it; instruments affecting land must be public documents (notarized) to be registrable under Sec. 112, PD 1529.

7. Practical Checklist for Heirs Opting Not to File an EJS

Map the estate – List all assets, debts, and heirs; check for a will.
Choose the correct track – Single heir = ASA; multiple heirs with no debts = EJS; with debts or disputes = judicial settlement; quick sale = co‑owners’ deed.
Secure tax‑free CAR – File Estate Tax Return within one (1) year of death; pay or arrange installment.
Draft & notarize instrument or file court petition – Ensure complete technical descriptions, marital history, witness, and conformity clauses.
Publish (if Rule 74) – Keep clippings and publisher’s affidavit.
Register – Obtain RD annotations and TCTs/CCTs; retrieve all certified true copies.
Keep records – Retain DAR/LGU clearances, tax receipts, photocopies of IDs, SPA, etc. for at least 10 years.

8. Conclusion

Transferring title without an extrajudicial settlement is legally feasible in the Philippines, but it invariably demands another recognized form of evidence—be it a probate decree, an Affidavit of Self‑Adjudication, or a co‑owners’ conveyance. The governing agencies (BIR and Register of Deeds) care less about the label of the document and more about (a) payment of estate tax, (b) authenticity of the instrument, and (c) protection of creditors and omitted heirs. Weigh the speed of a workaround against the two‑year lien, potential suits, and buyer hesitation. When in doubt—especially if liabilities exist—judicial settlement remains the safest, albeit costlier, path.

This article is for general information only and is not a substitute for individualized legal advice. Consult a Philippine lawyer or estate specialist for specific cases.