Validity of a Special Power of Attorney (SPA) for Extrajudicial Settlement of Estate in the Philippines
Updated as of 18 June 2025
1. Conceptual Framework
| Key Term | Core Idea |
|---|---|
| Extrajudicial Settlement (EJS) | A Rule 74, Rules of Court procedure allowing the heirs of a decedent who left no will and no outstanding debts (or whose debts have been paid) to divide the estate by public instrument instead of full-blown probate. |
| Special Power of Attorney (SPA) | A written, notarised mandate by which a principal (heir) confers specific acts of strict dominion on an attorney-in-fact. Distinguished from a general power of attorney by Article 1878, Civil Code, which lists acts that must be covered by an SPA. |
| Agent’s Act of Partition | Because an EJS inevitably creates or conveys real rights over immovable property, the authority falls squarely under Art. 1878 (11) & (13): it requires an SPA, not a mere general authority. |
2. Statutory & Regulatory Bases
| Source | Salient Provisions |
|---|---|
| Art. 1317, Civil Code | No one may contract in the name of another without authority. |
| Arts. 1868–1874, 1878–1879, Civil Code | Define agency, form, scope, and need for a special mandate when the act is of strict dominion (e.g., partition, sale, donation, mortgage). |
| Rule 74, §§1–4, Rules of Court | Governs EJS: eligibility, contents, bond, publication, registration, and prescriptive periods to contest. |
| Rule on Notarial Practice (2004, as amended 2021) | Prescribes formalities for notarisation; an SPA must be acknowledged before a notary public in the Philippines (or apostilled / consularised abroad). |
| Apostille Convention (effective 14 May 2019) | Replaces consular authentication for documents executed in member-states. |
| National Internal Revenue Code, §§84–97 (Estate Tax) | BIR requires an EJS (with SPA if signed by attorney-in-fact) when securing Electronic Certificate Authorizing Registration (eCAR). |
| Property Registration Decree (PD 1529) | An EJS affecting real property is recordable only if accompanied by proof of authority (SPA). |
3. Essential Requisites for a Valid SPA in an EJS
Written & Notarised Instrument Must be in a public document (Art. 1358) to be admissible in the Registry of Deeds and BIR.
Specific Authority The text should expressly empower the attorney-in-fact “to execute, sign and file a Deed of Extrajudicial Settlement and Partition (with or without Sale), pay estate taxes, and perform all related acts.” • Generic clauses like “to administer all my properties” are inadequate.
Identifiable Parties & Property Name each heir-principal and sufficiently describe the decedent and the properties (TCT numbers, tax declarations).
Capacity of Principal
- Of age; or
- If a minor, court-appointed guardian executes the SPA with prior probate-court approval (Art. 2251, Family Code).
Due Execution Abroad
- Signed before a Philippine Consul or a foreign notary then apostilled.
- For countries not in the Apostille Convention, follow traditional consularisation.
Continued Validity
- Revocable at will (Art. 1920) until EJS is actually signed.
- Extinguished by death of the principal unless the SPA is coupled with an interest already acquired by the agent (rare in EJS).
4. Linking the SPA to the Extrajudicial Settlement Process
| Step | How the SPA Operates |
|---|---|
| Drafting the SPA | Each heir signs a separate SPA or all heirs join in one instrument naming the same attorney-in-fact. |
| Publication & Bond | The attorney-in-fact must arrange: (a) three-week newspaper publication of the EJS, and (b) posting of a bond ≈ value of the estate (or secure waiver if estate ≤ P10,000). |
| Tax Clearance | BIR requires the presented SPA to match the signatures on the EJS and estate tax return. |
| Registration | EJS + SPA are filed with the Register of Deeds/LGU for new TCT-issuance. Absence of SPA or material defects causes denial of registration. |
5. Jurisprudence Snapshot
| Case | G.R. No. / Date | Doctrine |
|---|---|---|
| Heirs of Malate v. Gamboa | 170209 • 1 Dec 2009 | An EJS executed by an attorney-in-fact without a special authority specifically to partition renders the deed void against non-signatory heirs. |
| Spouses Bonilla v. Duran | 175297 • 27 Aug 2020 | The sale of inherited property made via EJS requires an SPA authorising both the settlement and the sale; otherwise, the conveyance is unenforceable. |
| Castillo Heirs v. Enriquez | 165508 • 1 Sep 2010 | Failure to register EJS + SPA bars innocent purchasers from relying on it; prescriptive periods under Rule 74 still run from filing, not execution. |
| Uy v. Court of Appeals | 119000 • 2 Apr 1998 | Deviation: Agent who exceeded SPA authority incurs personal liability; heirs may treat the act as unenforceable. |
(Case citations up to 2024. Check for newer cases before filing.)
6. Common Pitfalls & How to Avoid Them
| Pitfall | Consequence | Safeguard |
|---|---|---|
| Using a general POA | Register of Deeds rejects deed; courts annul partition. | Insert explicit “power to enter into extrajudicial settlement/partition.” |
| Missing notarisation / faulty acknowledgment (e.g., no competent evidence of identity) | SPA is a mere private document; cannot be registered. | Ensure complete notarisation compliance; use passport/PhilID. |
| Expired or revoked SPA used in filing | Void acts; potential estafa vs. attorney-in-fact. | Attach certificate of non-revocation or secure new SPA. |
| Minors’ interests unrepresented | Settlement void ab initio; subject to reconveyance suits. | Secure court-approved guardianship or wait until majority. |
| No apostille / consularisation for SPA executed abroad | BIR or RD will not accept; titles cannot be transferred. | Verify host country’s apostille status in advance. |
| Bond & publication skipped | Creditors/heirs may annul settlement within 2 years; after 2 years, they may sue for reconveyance. | Strictly observe Rule 74 formalities. |
| Attorney signs subsequent sale using the same SPA but without sale authority | Sale voidable/void; buyer has no title. | Use a separate SPA or include sale authority from the outset. |
7. Tax, Fees & Administrative Checklist
- Estate Tax: File BIR Form 1801 within 1 year from death (may be extended) • Attach notarised SPA + EJS • Pay estate tax or avail instalment scheme/abatements
- Transfer Fees: • Documentary stamp tax on EJS with sale (PHP 15/ 1,000 of consideration) • Registration fees under RD/LGU schedule
- Publication Costs: Three consecutive weekly issues (metro papers ~ PHP 5,000-15,000).
- Surety Bond Premium: ± 1–2 % of estate value.
8. Best-Practice Drafting Tips
SPECIAL POWER OF ATTORNEY
… I, JUAN DELA CRUZ, Filipino, single, of legal age, do hereby APPOINT
ATTY. MARIA SANTOS, likewise Filipino…
TO DO AND PERFORM, specifically:
1. To EXECUTE, SIGN, FILE and REGISTER a Deed of Extrajudicial
Settlement and Partition of the estate of our late father,
PEDRO DELA CRUZ, covering:
• Lot 1234-A, TCT-123456, Taguig City, 250 sq m;
• BPI Savings Account No. 0123-4567-89.
2. To pay estate taxes, secure eCAR and tax clearances;
3. To post the required bond and cause publication under Rule 74;
4. *[Optional]* To SELL or otherwise dispose of the properties
for a price not less than ₱20,000/m², sign deeds of sale, and
receive payment; …
IN WITNESS WHEREOF …Attach each heir’s SPA; staple originals to the EJS for BIR filing, then detach certified true copies for RD.
9. Contesting or Defending an EJS Executed through an SPA
| Scenario | Remedy | Prescriptive Period |
|---|---|---|
| Heir or creditor excluded but discovers within 2 years from registration | Rule 74 §4 action: petition to set aside EJS & bond enforcement. | 2 years |
| Discovery after 2 years | Acción reivindicatoria or annulment for fraud; 4 years from discovery (Art. 1391). | 4 years |
| SPA forged or falsified | Criminal complaint for falsification; civil action for reconveyance. | No prescriptive limit for imprescriptible registered land fraud suits (but laches may apply). |
10. Key Take-Aways
- EJS = act of strict dominion → always needs an SPA if not all heirs can personally sign.
- Specificity, notarisation, and proper authentication are non-negotiable validity elements.
- The SPA must travel with the EJS—from BIR to Register of Deeds—or the settlement stalls.
- Strict adherence to Rule 74 formalities (bond & publication) shields the settlement from future attack.
- Never recycle an SPA drafted for partition when later disposing of inherited property—add clear sale authority or execute a new SPA.
Final Word
An SPA for an extrajudicial settlement is more than a pro-forma attachment; it is the legal lifeblood that makes the heirs’ delegated partition binding on third parties, registries, and the courts. A single missing phrase (“to settle extrajudicially”) can unravel years of estate planning, so draft deliberately, notarise correctly, and file meticulously.