1) Why “heirs” and “property transactions” are legally tricky
When a person dies owning property, ownership does not float in limbo. In Philippine law, the rights to the estate pass to the heirs by operation of law at death, but the estate remains subject to settlement (payment of debts, taxes, partition). In practice, many property transactions involving heirs happen before there is a formal judicial settlement and sometimes even before the heirs have completed extra-judicial settlement documentation. That is where representation becomes sensitive: one heir cannot automatically bind the others, and a buyer, bank, or registry typically requires proof that the seller has authority to act for all who own or will own the property.
A Special Power of Attorney (SPA) is the most common instrument used when:
- not all heirs can personally sign documents,
- heirs live abroad or are unavailable, or
- one person is designated to complete settlement, sell, partition, mortgage, or process title transfers.
But an SPA is not a magic blanket authority. Under Philippine civil law principles, certain acts require special authority, and property dealings are among the most regulated.
2) Legal foundations of SPA authority in property dealings
A. Agency and “special authority”
An SPA is rooted in the law on agency: a principal authorizes an agent/attorney-in-fact to act in the principal’s name.
Philippine law distinguishes between:
- General authority (broad management, admin acts), and
- Special authority (specific acts like selling property, mortgaging, compromising, donating).
For real property, the rule of thumb applied by registries and institutions is strict: authority must be express, specific, and written, especially for acts of disposition (sale, mortgage, donation, partition, waiver).
B. Why “special” matters for real estate
Real estate transactions are not mere administration. The typical heir-related transactions—extrajudicial settlement, deed of sale, deed of partition, deed of donation, mortgage, waiver of rights—are acts that:
- convey or encumber ownership,
- change the identity of the registered owner, or
- materially affect property rights.
Hence, the SPA must spell out the act and the property.
3) Who must execute the SPA in heir transactions?
A. Each heir as principal
If multiple heirs own/claim rights to the property (or will own after settlement), then:
- each heir who is affected must sign the deed or grant an SPA to someone who will sign for them.
One heir cannot validly sell “everyone’s” shares unless the others gave authority. At most, that heir may sell only his/her undivided share—and even that creates buyer risk and title complications.
B. Special situations: minors, incapacitated heirs, absent heirs
Minor heirs
- A minor cannot execute an SPA.
- A parent (as legal guardian) cannot always freely dispose of a minor’s property rights without court authority in many circumstances.
- Any conveyance involving a minor’s hereditary share is highly scrutinized. Typically, you need judicial approval/guardianship proceedings or an appropriate court order before the minor’s share can be validly sold or encumbered.
Incapacitated heirs
- If an heir is incapacitated, representation may require a judicially appointed guardian with authority to dispose/encumber.
Absent or missing heirs
- If an heir is missing, you generally cannot just “ignore” them. Transaction structures often require settlement that accounts for their share, sometimes via judicial processes (e.g., appointment of a representative/administrator depending on facts).
4) Typical heir-related property workflows and where SPAs fit
Scenario 1: Extrajudicial Settlement of Estate (EJS)
When there is no will and the heirs agree to settle the estate without court, they execute an Extrajudicial Settlement (sometimes with Deed of Partition, Deed of Adjudication, etc.).
SPA use: If an heir cannot appear to sign the EJS, that heir executes an SPA authorizing an agent to:
- sign the EJS/partition,
- represent the heir before the notary,
- process BIR estate tax requirements,
- file documents with the Registry of Deeds, Assessor’s Office, LGU treasurer, etc.
Caution: The EJS is not merely administrative; it can determine who gets what. Registries and BIR offices often require that an SPA explicitly authorizes signing the settlement and partition.
Scenario 2: Sale of inherited real property
Heirs sell inherited land/house to a buyer.
Common approaches:
- Settle first, then sell (cleaner): EJS → transfer title to heirs or to designated heir(s) → deed of sale.
- Sell as part of settlement (sometimes used): EJS with simultaneous sale documents.
SPA use: Any heir not signing personally must issue an SPA that explicitly authorizes:
- selling the property,
- signing the Deed of Absolute Sale (or Conditional Sale),
- receiving purchase price (if applicable) and issuing receipt,
- signing tax declarations, eCAR requirements, and registration documents.
Scenario 3: One heir “buys out” the others
This is effectively a sale of hereditary shares or a partition with equalization.
SPA use: Heirs who transfer their share must authorize:
- waiver/quitclaim (if used),
- deed of sale of hereditary rights (if used),
- deed of partition/adjudication transferring shares.
Caution: A “Waiver of Rights” is often misunderstood. If there is consideration (payment), it may be treated as a sale, with tax consequences and documentary requirements. Institutions often want clear language: waiver without consideration vs sale/assignment for consideration.
Scenario 4: Mortgage/loan using inherited property as collateral
Banks are very strict.
SPA use: Authority must specifically include:
- mortgaging/encumbering the property,
- signing loan and mortgage documents,
- receiving loan proceeds (if allowed),
- dealing with the bank and registry.
Banks frequently require:
- the SPA to name the bank,
- the exact loan purpose/amount ceiling,
- property description, and
- specimen signatures and IDs.
5) What the SPA must contain to be accepted in Philippine property transactions
Registries and banks vary in templates, but the best practice is to draft the SPA with maximum specificity and documentary completeness:
A. Exact identification of parties
- Full name, nationality, civil status, and address of the principal heir.
- Full name and address of the attorney-in-fact.
B. Clear statement of relationship and context
- Identify the decedent and date of death.
- State that the principal is an heir and is authorizing the agent for estate settlement/property transaction.
C. Precise property identification
Include:
- TCT/CCT number (if titled),
- location (barangay/city/province),
- lot and block numbers, survey details,
- tax declaration number (if untitled),
- boundaries/area where possible.
D. Enumerated powers (do not rely on broad phrases)
For heirs’ property transactions, common powers that must be express include:
Settlement and partition
- sign extrajudicial settlement, deed of partition/adjudication,
- sign affidavits of publication, notices, and related instruments,
- represent before government agencies and local offices.
Sale/transfer
- sell/assign/transfer rights or the property,
- negotiate and sign contract to sell/deed of absolute sale,
- sign transfer documents, endorsements, and tax-related forms.
Receive and acknowledge payment (only if intended)
- collect purchase price, issue receipts, acknowledge full payment.
- If the principal wants payment to go directly to them, the SPA should exclude authority to receive proceeds.
Tax and registration
- process estate tax, capital gains tax/withholding tax, documentary stamp tax,
- sign and file BIR forms,
- secure eCAR, transfer certificate, new tax declaration,
- transact with Registry of Deeds.
Possession/administration
- manage property pending settlement, lease it, collect rents (if desired).
Mortgage/encumbrance (if applicable)
- mortgage, constitute liens, sign loan documents.
E. Authority limitations and safeguards
Good SPAs often include:
- price floor or “not below ₱___,”
- requirement that payment be made to a specific bank account,
- prohibition against donating,
- prohibition against sub-delegation unless allowed,
- expiration date (especially for one-off transactions).
F. One property vs multiple properties
A clean SPA is:
- either per property and per transaction, or
- a single SPA listing multiple properties with separate authority clauses.
Overly broad “all my properties wherever located” is often rejected or treated with suspicion.
6) Formalities: notarization, consularization, apostille, and authenticity
A. Notarization in the Philippines
For local execution:
- The SPA should be notarized by a Philippine notary public.
- The principal must personally appear before the notary with competent proof of identity.
Notaries are expected to follow strict identity and personal appearance rules; improper notarization can invalidate the instrument and invite criminal/administrative exposure.
B. SPAs executed abroad by heirs (OFWs, emigrants)
Heirs abroad commonly execute SPAs through:
Philippine Embassy/Consulate
- The consular officer notarizes/authenticates. The document is generally treated as notarized for Philippine use.
Local foreign notary + apostille
- Under the Apostille framework adopted by the Philippines, documents notarized abroad and apostilled in the issuing country can be recognized in the Philippines, subject to acceptance by agencies and registries.
Practical note: Many registries and banks have preferred formats; consular notarization is often the smoothest path for Philippine-facing transactions.
C. “Freshness” requirements
Registries, banks, and buyers often want an SPA that is:
- recently executed (commonly within the last 6–12 months, sometimes less),
- not revoked, and
- clearly still effective (no death of principal; no expiration).
There is no universal statutory “expiration,” but private institutions impose policy cutoffs.
D. Revocation and termination
An SPA can be revoked by the principal, but revocation is only effective against third persons who do not know it if not properly communicated. Also:
- Death of the principal terminates agency.
- This is critical: an heir cannot validly authorize an agent to sell “after my death.” If the heir dies, the SPA stops, and their share passes to their own heirs, creating a second-layer estate.
7) SPA vs other instruments heirs use (and why labels matter)
A. SPA vs Waiver of Rights
A Waiver of Rights (often used among heirs) can be:
- a gratuitous waiver in favor of co-heirs (closer to donation/renunciation), or
- a waiver for consideration (functionally a sale/assignment).
If the goal is to transfer rights for payment, clearer instruments include:
- Deed of Assignment of Hereditary Rights, or
- Deed of Sale of Undivided Share / Deed of Sale of Hereditary Rights.
Using “waiver” language when there is payment can create:
- tax mismatches,
- later challenges for simulation/undue influence,
- registry resistance.
An SPA is not a substitute for the transferring instrument; it only empowers someone to sign it.
B. SPA vs General Power of Attorney (GPA)
A GPA is more general, but for real property transactions, acceptance usually hinges on special authority clauses anyway. Many registries reject or question “general” wording without explicit sale/mortgage authority and property description.
C. SPA vs judicial authority
If the transaction involves:
- minors,
- disputes among heirs,
- missing heirs,
- contested properties,
then SPAs alone may be insufficient. Court-supervised settlement or guardianship authority may be required.
8) Due diligence checklist for buyers, brokers, and co-heirs dealing with an SPA
When the person signing is an attorney-in-fact for an heir, verify:
Identity match
- IDs of principal and agent; signatures consistent.
Capacity
- principal is alive, competent, and the true heir.
Authority scope
- SPA explicitly authorizes the exact deed to be signed (settlement, sale, mortgage, partition, waiver).
Property match
- title number/location/technical description in SPA matches the property.
No red flags
- overly broad powers, no limitation on price, agent receiving proceeds without safeguards.
Notarial regularity
- proper notarization/consularization/apostille.
Heir completeness
- all heirs accounted for, including spouse where applicable; check family tree.
Tax and settlement compliance
- estate tax settlement requirements (eCAR), local taxes, transfer taxes, publication requirements for EJS, if applicable.
Title condition
- liens, annotations, adverse claims, pending cases, encumbrances.
A buyer who ignores SPA issues risks a void or voidable transfer, inability to register, or future claims by non-consenting heirs.
9) Common defects that cause SPA rejection or transaction failure
- No express power to sell/mortgage/partition
- Property not identified (no title number / vague description)
- Blanket authority “to do all acts” without enumerated special powers
- SPA not notarized (or defective notarization)
- Outdated SPA per bank/registry policy
- Agent not authorized to receive payment, but agent attempts to collect (or the opposite: agent can collect, but principal later disputes)
- Principal already deceased at signing/closing
- One or more heirs missing from settlement chain
- Minor heir included without court authority
- Foreign execution without proper consularization/apostille
- Substitution not authorized (agent delegates to another without authority)
- Inconsistent names (spelling, middle name, civil status) with IDs and title
10) Drafting guidance: clauses that typically appear in a strong heirs’ SPA
While exact wording depends on the transaction, the strongest SPAs for heirs’ property dealings usually include:
Statement of heirship and reference to the decedent.
Authority to execute EJS/partition, including publication-related affidavits if needed.
Authority to sell:
- to sign the deed of sale,
- to sign all supporting documents (tax forms, receipts, clearances),
- to appear before the Registry of Deeds and government agencies.
Authority on proceeds:
- either authorize receipt and deposit to a named account, or explicitly withhold receipt authority.
Authority to sign BIR/LGU/Registry documents:
- eCAR processing, tax declarations, transfer tax forms, etc.
Price limitation and buyer selection limitations when desired.
Term (valid until a specific date or until completion of a specific transaction).
Non-substitution clause unless substitution is intended.
Ratification clause (principal confirms and ratifies lawful acts within authority).
11) Practical patterns that reduce risk in heir transactions
Pattern A: “Settle first, sell later”
- Execute EJS/partition.
- Pay estate tax and obtain eCAR.
- Transfer title to heirs (or the adjudicatee).
- Then execute deed of sale.
This reduces:
- buyer’s uncertainty,
- registry objections,
- risk of heir disputes mid-process.
Pattern B: Escrow-like handling of proceeds
If an agent is authorized to sign, parties often protect everyone by:
- paying through manager’s check payable to each heir separately, or
- depositing to an escrow arrangement, or
- splitting payment per heir shares.
Pattern C: Separate SPAs per transaction phase
Instead of one massive SPA, use:
- SPA for settlement and tax processing, and
- SPA for sale.
This prevents accidental overreach and makes compliance easier.
12) Summary of “all there is to know” in one page
- In Philippine heir property transactions, an SPA is essential whenever an heir is not personally signing.
- Acts of disposition (sale, mortgage, partition, waiver/assignment) require express written special authority, and institutions demand specificity.
- The SPA should identify the property by title/tax details and enumerate the exact acts authorized (settlement, sale, receipt of payment, tax filing, registration).
- Foreign-executed SPAs must be properly notarized and authenticated (consular or apostille route) to be accepted.
- Agency ends upon the principal heir’s death; minors and incapacitated heirs generally require court-supervised authority beyond an SPA.
- The biggest failure points are vague authority, missing heirs, defective notarization/authentication, and mismatched property/identity details.