Buying or inheriting real property is complicated enough; layering in the death of the registered owner before the heirs can sign documents adds procedural and tax hurdles. This article lays out the Philippine legal framework, standard pathways, documents, taxes, and practical work-arounds so you can lawfully transfer (and, if needed, register) title even when the seller has died.

Scope. Philippine law and practice under the Civil Code, the Rules of Court (Rule 74), the Land Registration Decree (PD 1529), and Bureau of Internal Revenue (BIR) rules. This is a general guide; edge cases may require tailored legal advice.

1) First Principles

A person’s civil personality ends at death. The decedent can no longer sign or acknowledge instruments. Any deed purportedly “notarized” after the seller’s death is defective as a public document, although the underlying private agreement may still be evidence of a valid sale if perfected before death.
Ownership passes to the estate, then to heirs (or legatees/devisees) subject to estate settlement and taxes. Until settlement, the estate (through the judicial estate or the heirs acting jointly in an extrajudicial settlement) stands in the shoes of the deceased for purposes of disposition.
Registries, BIR, and LGUs are form-driven. Even if a sale was validly perfected before death, registries will still require proper instruments executed by those now legally capable (heirs, executor/administrator) plus complete tax clearances before issuing a new title.

2) Map Your Scenario

Use this quick map to choose the correct path:

A. Seller signed a deed during life, but it was not notarized before death → treat the deed as a private document; registration will require heir ratification/confirmation or a court order compelling conveyance.
B. Seller died before any deed was signed, but there was a perfected sale (clear price + object + consent, often with receipts or a contract to sell) → transfer requires heirs (or estate representative) to execute the deed, via:
- Extrajudicial Settlement with Sale (EJS+Sale) if no court estate proceedings; or
- Judicial estate (probate/letters of administration) with court-authorized sale.
C. There is a will. Property cannot be transferred on the strength of the will alone; probate is required. After probate (and appointment of executor), the executor conveys title or heirs execute post-probate deeds.
D. Some heirs are minors or incapacitated. A guardian (with court approval of the sale) must act for them.
E. Heirs are abroad. They must issue apostilled Special Powers of Attorney (SPAs) for local execution of deeds.

3) The Three Lawful Pathways

Path 1 — Extrajudicial Settlement of Estate (EJS) with Sale

Use when: the decedent left no will, no outstanding debts (or debts are settled/assumed), and heirs are all of age and in agreement.

Core instrument: “Deed of Extrajudicial Settlement of Estate and Sale,” where heirs (including the surviving spouse, as co-owner of conjugal/absolute community share) (a) settle the estate, (b) partition or adjudicate the property, and (c) sell the subject parcel to the buyer in the same document.

Mandatory add-ons:

Publication: The EJS (or a brief notice) must be published once a week for three consecutive weeks in a newspaper of general circulation.
Two-year claims window: Transfers remain subject to claims of heirs/creditors filed within two years from the EJS.

Who signs: All heirs (or their attorneys-in-fact). If any heir refuses, EJS is unavailable → proceed to Path 2.

Path 2 — Judicial Settlement / Probate with Court-Authorized Sale

Use when: there is a will, debts, disagreement among heirs, minor heirs, or missing heirs.

Core steps:

File probate (if there’s a will) or petition for letters of administration (intestate).
Court appoints executor/administrator who represents the estate.
Seek court approval to sell the property (especially if minors or debts are involved).
Executor/administrator executes the deed of sale by authority of the court.

This route conclusively vests authority and minimizes later challenges.

Path 3 — Heir Ratification/Confirmation of a Lifetime Sale

Use when: the seller signed a deed (or there’s a clear contract of sale) before death, but registration formalities were incomplete (e.g., not notarized).

Core instruments:

Affidavit of Heirship and Confirmation of Sale (heirs acknowledge the decedent’s sale and confirm conveyance); or
Deed of Absolute Sale by Heirs as Confirming Parties, reciting the lifetime sale and conveying any residual right or interest.

If any heir disputes the lifetime sale, consider filing a specific performance or reformation case and annotate lis pendens to protect the buyer’s rights during litigation.

4) Taxes & Clearances (Typical for Sale After Death)

You cannot register the transfer without the BIR’s Electronic Certificate Authorizing Registration (eCAR). In “EJS+Sale” or heir sale scenarios, expect two sets of tax events:

Estate Tax — 6% of net estate (gross estate less allowable deductions), generally due within 1 year from death (extensions/penalties may apply). Payment produces an eCAR (Estate) listing the heirs as transferees from the decedent.
Sale Taxes (when the property is sold, whether simultaneous with EJS or later):
- Capital Gains Tax (CGT): 6% of the higher of gross selling price or zonal/fair market value (if capital asset). If the property is classified as an ordinary asset of a real-estate dealer, substitute creditable withholding tax (CWT) rules apply instead of CGT.
- Documentary Stamp Tax (DST): 1.5% of the same tax base.
- Local Transfer Tax: up to 0.75% (rate varies by LGU).
- Registration Fees: per Registry of Deeds schedule.

Simultaneous processing tip. In an EJS+Sale, BIR permits one-time processing so long as the estate tax is computed and paid first, then CGT/DST on the heirs’ sale to the buyer. The BIR will typically issue separate eCARs: (a) decedent → heirs (estate), then (b) heirs → buyer (sale).

5) Core Checklists

A) For Estate Tax (Decedent → Heirs)

Death certificate
TINs of decedent and heirs (secure TINs for those without)
Certified true copy (CTC) of title, latest tax declaration, and real property tax clearance
Zonal valuation printout / assessor’s FMV certifications
Proof of allowable deductions (e.g., mortuary, medical, claims against estate, standard family home deduction, etc.)
EJS (if extrajudicial) or court documents (if judicial)
Valid IDs, SPA (if via representative), apostille for foreign SPAs

B) For Sale (Heirs → Buyer)

Deed of EJS with Sale or Deed of Absolute Sale by Heirs (or Executor’s Deed with court order)
BIR eCAR(s) (estate and sale)
CGT return / CWT returns, DST returns with proof of payment
Latest RPT receipts and tax clearance
Owner’s duplicate title (OCT/TCT/CCT), CTC of title from RD
Vicinity/lot plan, if required by lender or for mapping
Buyer and seller IDs, TINs; SPA(s) as needed
Publication proof (for EJS): affidavit of publication + newspaper issues
For minors: Letters of Guardianship and court approval of sale

6) Registration Sequence (Registry of Deeds)

Annotate the estate step
- Present eCAR (Estate) and EJS/judicial documents so the RD can recognize heirs (or executor/administrator) as proper transferors.
Effect the sale
- Present sale deed + eCAR (Sale) + transfer/LGU dues + RD fees.
Issuance of new title
- RD cancels the old TCT/CCT and issues new TCT/CCT in the buyer’s name (or, if no sale yet, in the heirs’ names per partition).

Common RD pitfalls: mismatched names or TINs; missing marital status; wrong technical description; stale tax clearance; unacknowledged corrections/erasures in deeds.

7) Special Situations

Conjugal/Absolute Community Property. Death dissolves the property regime. The surviving spouse is both co-owner (to the extent of conjugal share) and heir (to the decedent’s share). Include the spouse in the EJS and sale instruments.
Unlocated or Unknown Heirs. Extrajudicial settlement is risky; safer to open judicial settlement and notify possible heirs.
Mortgage/Lien on Title. Secure mortgagee’s consent and cancellation; unpaid obligations may be settled from estate proceeds.
Buyer’s Protection if Heirs Stall.
- Adverse Claim (Sec. 70, PD 1529) on the existing title, to notify third parties;
- Lis Pendens if a case is filed;
- Specific Performance to compel conveyance;
- Reformation if the written deed fails to express the true agreement.
Deed Signed by Decedent, Notarized After Death. The notarization is void as to its character as a public instrument, but the deed may still evidence a sale. Cure by heir confirmation or court action.
Minor Heirs’ Shares. Any sale affecting a minor’s inheritance needs court approval after guardianship proceedings, even in an otherwise “extrajudicial” settlement.
Heirs Abroad. Execute SPAs before a foreign notary and apostille (or consularize, if the country is not a party to the Apostille Convention). Philippine notaries cannot acknowledge a signature made outside the Philippines unless the appearance is before them.

8) Drafting Guidance (Model Clauses)

A. EJS with Sale – Key Clauses

Recitals: death, date/place; heirs identified; property description (TCT no., Lot/Blk, area, technical description reference); absence/settlement of debts.
Settlement/Adjudication: allocation or collective adjudication to all heirs.
Sale: heirs sell and transfer the property to [Buyer] for ₱[amount], receipt acknowledged.
Warranties: ownership limited to inherited share; freedom from liens except those disclosed; heirs agree to cause registration.
Publication Undertaking: heirs to publish notice and submit proof.

B. Affidavit of Heirship & Confirmation of Sale

Acknowledge decedent’s lifetime sale details (date, consideration, possession delivered).
Heirs confirm and convey any residual rights; waive claims against buyer; undertake to assist in registration.

C. Executor/Administrator’s Deed

Cite case title, court, case number, order authorizing sale, and terms; attach certified copies of court orders.

9) Due Diligence for Buyers

Trace chain of title (CTC of title + last three dealings).
Check for adverse annotations (lis pendens, attachments, special powers, claims).
Validate tax status (assessor and treasurer).
Confirm estate path (EJS vs. judicial; minors? foreign heirs?).
Require two eCARs for EJS+Sale (estate and sale).
Holdback a portion of the price in escrow until post-registration deliverables are met.

10) Timelines, Penalties, and Costs (At a Glance)

Estate tax: due within 1 year from death; surcharges/interest if late.
CGT/DST: typically due within 30 days from notarization of the deed (unless specific forms allow different deadlines).
Publication: three consecutive weeks; collect proof early.
Local transfer tax & RD fees: payable at presentation for registration.

Budgeting tip. Beyond taxes, expect publication fees, SPA apostille/courier costs, guardianship/probate costs if judicial, and professional fees.

11) Frequently Asked Questions

Q1: We only have a signed private deed by the deceased, no notarization. Can we still transfer? Yes. Have the heirs execute a confirmation (or an EJS+Sale). If they refuse, file specific performance and annotate lis pendens.

Q2: One heir disagrees—do we have to go to court? Yes. EJS requires unanimity among heirs of legal age. Disagreement, minors, or unsettled debts push you to judicial settlement.

Q3: Can we register the buyer directly without first issuing a title to the heirs? Yes, via EJS with Sale (simultaneous transfers) if eligible; BIR and RD will process estate first (for tax purposes) and sale second, usually issuing the buyer’s title without an intermediate heirs’ title.

Q4: There is a will but no probate. Can we do EJS instead? No. A will must be probated before it has legal effect as to disposition of property.

Q5: The property is conjugal; the seller died. Who signs? The surviving spouse (for conjugal share) and the heirs (for decedent’s share)—either in EJS+Sale or, if judicial, via the executor/administrator with court authority.

12) Practical Step-by-Step (Most Common Route: EJS + Sale)

Gather IDs, title, tax dec, RPT clearance, death certificate, TINs.
Draft and notarize EJS with Sale (include surviving spouse; attach SPA(s) if needed).
Publish notice of the EJS (3 weeks) and secure proofs.
File Estate Tax Return and pay estate tax → secure eCAR (Estate).
File CGT/CWT and DST for the sale → secure eCAR (Sale).
Pay local transfer tax.
Lodge with Registry of Deeds: title, both eCARs, deed, tax clearances, IDs, proof of publication, and fees.
Claim new title in buyer’s name; update assessor’s records (new tax declaration).

13) Red Flags & Risk Controls

Post-death notarization of a decedent’s signature (treat as private; cure via heir confirmation or court).
Missing heir (invalidates EJS; seek judicial route).
Minor heir (requires guardianship and court approval).
Unpaid estate tax (blocks issuance of eCARs).
Name mismatches/identity issues (birth/marriage certs to align names).
Heirs not disclosing encumbrances (indemnity + escrow).
Buyer paying 100% before eCARs (use phased payments/escrow).

14) Quick Templates (Skeletons)

A. Caption: Deed of Extrajudicial Settlement of Estate and Sale Key Parts: Parties; Recitals; Settlement/Adjudication; Sale Clause; Consideration & Receipt; Warranties; Undertakings (publication, registration); Signatures; Acknowledgment.

B. Affidavit: Affidavit of Heirship and Confirmation of Sale Key Parts: Heir identities; Decedent details; Property details; Narrative of lifetime sale; Confirmation and conveyance; Waiver; Undertaking to assist registration.

C. Executor’s Deed: Deed of Sale by Executor Key Parts: Court case number; Authority order; Sale terms; Attach certified court orders.

(Drafting should be handled by counsel or a competent conveyancer to fit your facts.)

15) Bottom Line

When the seller dies before heirs can sign, you are not stuck. Choose the lawful path that matches your facts:

EJS + Sale when everyone is of age, in agreement, and debts are settled;
Judicial settlement/probate when there are complications;
Heir confirmation (or court action) when the decedent signed but formalities lagged.

Complete the estate tax first, secure eCARs, and then register. With the right documents, the Registry of Deeds can issue a clean title to the buyer—even if the original seller passed away before the heirs signed.