1) Overview

In Philippine practice, heirs often want to (a) divide a decedent’s property without going to court and (b) sell the property or transfer it to one buyer. This commonly results in a single instrument titled something like “Extrajudicial Settlement of Estate with Absolute Deed of Sale” (sometimes also “with Waiver,” “with Partition,” or “with Sale”).

At its core, the document tries to do two legal jobs at once:

Extrajudicial settlement: a mode allowed by law for heirs to settle and partition an estate without judicial proceedings, provided strict conditions are met.
Absolute sale: a conveyance transferring ownership for a price from the seller(s) to a buyer.

Validity depends on both halves being valid, and also on compliance with succession rules, tax requirements, and land registration rules.

2) Legal foundation of extrajudicial settlement

A. When extrajudicial settlement is allowed

Extrajudicial settlement is generally allowed when:

The decedent left no will (intestate settlement), or the settlement is otherwise proper under intestacy rules;
The decedent left no outstanding debts, or debts have been paid/settled (practically: heirs may still proceed but assume responsibility; however, this is the point most often scrutinized);
The heirs are all of age, or if there are minors/incapacitated heirs, they are represented by a judicially appointed guardian or otherwise complied with as required by law; and
The settlement is made in a public instrument (notarized) or in a proper manner acceptable for registration.

The commonly cited procedural basis is Rule 74 of the Rules of Court (summary settlement), which recognizes extrajudicial settlement and also provides protections for creditors and omitted heirs.

B. Forms: partition, adjudication, and the “sale” variant

Common variants include:

Deed of Extrajudicial Settlement and Partition (heirs divide among themselves).
Deed of Extrajudicial Settlement with Sole Adjudication (only one heir; strict requirements).
Extrajudicial Settlement with Sale (heirs settle among themselves and sell to a buyer in the same instrument).
Extrajudicial Settlement with Waiver of Rights (one or more heirs “waive” in favor of others; validity depends on whether it’s truly a waiver or effectively a donation/sale).

3) The “with Absolute Sale” structure: what it legally accomplishes

A. Who can sell estate property?

Ownership of the estate property does not automatically transfer to heirs by mere death in the practical, registerable sense, but rights to the inheritance vest upon death, subject to administration, debts, legitime, and the rights of other heirs.

In plain terms:

Heirs can validly sell their hereditary rights even before partition (an “assignment/sale of hereditary rights”), but what the buyer gets is essentially the seller’s share/rights, subject to the estate’s issues.
Selling the specific property (e.g., a specific titled land) as if the seller already owns a determinate portion is safest when all heirs join and the estate is properly settled/partitioned (or sold as a whole by all heirs acting together).

Thus, an “EJS with Absolute Sale” is typically drafted so that:

Heirs declare and settle the estate; then
They, as heirs and now allocators of rights, sell the property to the buyer.

B. What the buyer needs to be protected

Even if the deed looks complete, the buyer’s security depends on:

All heirs truly participating (or their proper representatives);
No omitted compulsory heirs;
No subsisting estate debts that could lead to claims against the property;
Proper publication/registration steps;
Payment of correct taxes so the Registry of Deeds will transfer title.

4) Substantive validity requirements (the usual fault lines)

A. All heirs must be included (and correctly identified)

A frequent ground for later attack is that an heir was excluded:

An omitted heir can seek annulment/partial nullity or reconveyance corresponding to their share.
The deed may remain effective among signatories, but cannot prejudice the omitted heir’s legitime/inheritance rights.

Best practice in evaluating validity: verify the decedent’s family tree and applicable intestate succession rules (spouse, children legitimate/illegitimate, parents, siblings, etc.).

B. Capacity and authority: minors, incapacitated heirs, and spouses

If any heir is a minor or legally incapacitated, selling estate property typically requires proper representation and often court authority, depending on circumstances. A simple signature by a parent without authority can be vulnerable.
If an heir is married, whether the spouse must join depends on the property regime and whether the right being disposed is exclusive or conjugal/community in nature. Hereditary rights are generally personal to the heir, but proceeds and certain implications can intersect with marital property rules. In conveyances of real property interests, registries often scrutinize marital status and spousal consent.

C. No will / will issues

An extrajudicial settlement is fundamentally an intestate path. If there is a will, the proper route is ordinarily probate; attempting to “EJS” despite a will can create serious vulnerability.

D. Truthfulness of the “no debts” declaration

Many deeds include a clause that the decedent left no debts. If untrue, creditors may pursue remedies. Rule 74 protections exist for creditors, including a period during which the estate may be made answerable.

This doesn’t always make the deed automatically void, but it creates risk: a buyer can be exposed to claims, and heirs can be liable.

E. Legitimes and compulsory heirs

Philippine succession law protects compulsory heirs through legitime. Any settlement or sale that effectively impairs legitime—especially where some heirs did not consent or were misled—can be attacked.

5) Formal validity requirements (form, notarization, and registrability)

A. Must be in a public instrument

For real property to be registrable and enforceable against third persons, the deed must be notarized and comply with notarial rules. Issues that can defeat form include:

Defective notarization (e.g., parties not appearing, improper acknowledgment);
Fraudulent notarization (a serious defect that can lead to nullity or at least non-registrability and evidentiary collapse);
Incomplete details (no technical description, no TCT/OCT reference, etc.) that prevent registration.

B. Publication requirement (Rule 74)

A hallmark requirement for extrajudicial settlement is publication in a newspaper of general circulation (commonly once a week for three consecutive weeks). In practice, registries often require proof of publication before registration of the EJS.

Failure to publish can make the settlement vulnerable and may hinder registrability; it also affects protections for creditors and third parties.

C. Registration with the Registry of Deeds

To bind third persons and to effect title transfer, steps generally include:

Register the EJS (and sale, if combined);
Pay taxes and secure clearances;
Transfer title to the buyer.

Unregistered deeds may be valid between parties but can lose to subsequent registrants in certain scenarios, and are generally unacceptable for clean conveyancing.

6) Taxes and clearances: practical conditions that affect “validity” in the real world

In the Philippines, even a perfectly drafted deed is practically useless for title transfer unless tax compliance is met.

A. Estate tax

Before transferring title from a deceased person to heirs (and then to a buyer), the Bureau of Internal Revenue typically requires:

Estate tax return filing and payment (or proof of exemption/relief if applicable);
Issuance of eCAR (Electronic Certificate Authorizing Registration).

Without eCAR, the Registry of Deeds will not process transfer.

B. Capital gains tax / withholding tax / documentary stamp tax

For the sale portion:

Generally, the sale of real property classified as a capital asset triggers capital gains tax (or relevant tax treatment depending on classification) and documentary stamp tax.
Local transfer tax and other fees also apply.

C. Real property tax and local clearances

Local government units often require:

Updated real property tax payments;
Tax declaration updates;
Transfer tax payment.

These are not “validity” elements in a Civil Code sense, but they are conditions for registrability and for an effective clean transfer.

7) Typical validity problems and legal consequences

A. Forged or absent signatures

If an heir’s signature is forged or absent:

The deed is void as to that person’s participation.
The buyer may only acquire the shares of those who truly consented.
This frequently leads to partition/reconveyance litigation.

B. Waiver vs donation vs sale mischaracterization

Some deeds use “waiver” language where an heir gives up rights in favor of specific persons, often with consideration.

A “waiver” in general terms (renunciation) may have different effects than a transfer in favor of identified persons, which can be treated as donation or sale/assignment.
Mislabeling can trigger wrong tax treatment, formal requirements (e.g., donation formalities), and later disputes.

C. One heir “selling” the entire property

A single heir cannot validly sell what belongs to other heirs. At most, that heir can sell:

Their undivided share; or
Their hereditary rights, subject to partition.

If the deed purports to sell the entire property without the other heirs, the buyer’s title is vulnerable.

D. Titles still in decedent’s name / multiple properties

For multiple properties, an EJS should clearly enumerate assets. Leaving out assets can invite later disputes.

E. Fraud, mistake, undue influence

If heirs were induced to sign through fraud or if consideration was illusory, rescission/annulment claims may arise.

8) Protection of omitted heirs and creditors (Rule 74 policy)

Even when extrajudicial settlement is allowed, the law balances speed with protection:

Creditors have a window to assert claims against the estate.
Omitted heirs can challenge settlement and seek their lawful share.

For buyers, this means risk is not only about deed form; it’s about whether the settlement truly captured the entire legal reality of the decedent’s heirs and obligations.

9) Drafting essentials of a robust “EJS with Absolute Sale”

A well-constructed instrument typically contains:

Death and identity facts
- Name of decedent, date/place of death, civil status, residence, proof (death certificate).
Heirship and relationship statements
- Names, ages, civil status, addresses, relation to decedent.
Statement of intestacy and no pending will
- Clear assertion that the decedent left no will (or that no will is being relied upon).
Estate debts declaration
- “No outstanding debts” or how debts were settled; sometimes indemnity clauses.
Complete property description
- TCT/OCT number, technical description, location, area, improvements.
Settlement/partition/adjudication provisions
- How rights are allocated (even if sold immediately).
Absolute sale provisions
- Consideration, mode of payment, warranties, taxes allocation, delivery of possession.
Heirs’ warranties and indemnities
- That they are the only heirs; hold buyer free from claims; but note these do not defeat rights of omitted compulsory heirs—rather they shift liability among parties.
Undertaking to publish and register
- Publication details and commitment to comply.
Notarial acknowledgment and competent evidence of identity

Full compliance with notarial law to avoid fatal defects.

10) Due diligence checklist to assess validity (buyer/heir perspective)

A. Heirship verification

Civil registry documents: marriage certificates, birth certificates, recognition/legitimation where relevant, death certificate.
Check for: surviving spouse, legitimate/illegitimate children, parents, and other heirs depending on who survives.

B. Title and property checks

Certified true copy of title; check liens/encumbrances, adverse claims, annotations.
Tax declaration, RPT status, actual possession/occupancy.

C. Estate compliance

Estate tax filing status, eCAR readiness.
Publication proof requirements.

D. Signature authenticity and capacity

Ensure all heirs sign; check IDs; for those abroad, proper consular notarization/apostille (as applicable) and special powers of attorney if someone signs for another.
For minors/incompetents, verify legal authority.

11) Key doctrinal takeaways

An “Extrajudicial Settlement of Estate with Absolute Sale” is not automatically invalid simply because it combines settlement and sale; it is evaluated as an extrajudicial settlement plus a conveyance.
The most serious threats to validity are omitted heirs, lack of capacity/authority, defective notarization, and misrepresentation on debts or heirship.
Even if valid between parties, the deed must satisfy publication, tax, and registration requirements to produce the intended effect of clean transfer and indefeasible title in practice.
A buyer’s strongest position occurs when all heirs execute the instrument, estate compliance is complete (especially estate tax/eCAR), and the deed is properly published and registered.

12) Practical conclusion

In Philippine conveyancing, the validity of an extrajudicial settlement with absolute sale is not judged solely by the presence of notarization and a “complete” document. It is a succession compliance exercise (who the heirs are, what rights they have, and whether they can settle without court) combined with a property transfer exercise (capacity to sell, form, tax, and registration). Where any element is missing—particularly an heir, authority for vulnerable parties, or compliance steps that protect third persons—the document may be ineffective in whole or in part, and the transfer to a buyer can become the subject of partition, reconveyance, or annulment litigation.