The partition of an estate is settled in two ways: extrajudicially and judicially. Whether a will was left by the deceased owner or not, each settlement has their own procedures and requirements that the heirs must comply with.
Extrajudicial partition of estate
Extrajudicial partition occurs when a deceased estate owner has not named any heirs to the property or if they passed away without a valid will. This is a common procedure in the Philippines and is usually settled outside the court. Since the heirs don’t need to go to trial, the estate can be divided among themselves.
According to Rule 74, Section 1 of the Rules of Court, for an extrajudicial settlement to take place, the following criteria must be met:
No valid will left by the deceased owner
No existing debts by the deceased owner. If there are, these must be fully paid.
Heirs must be 18 years of age and above. If not, a judicial or legal agent must represent the minor heirs.
A public instrument (any legal instrument such as a document) which has been filed in the office of the Register of Deeds
The number of heirs also makes a difference in the extrajudicial partition of estate. Sole heirs must file an Affidavit of Self Adjudication, which will only be accepted if the property owner passed away without leaving a will and if the said person has just one heir. Multiple heirs, on the other hand, must file a Deed of Extrajudicial Settlement of Estate and Adjudication of Estate.
The Deed of Extrajudicial Settlement includes:
A declaration stating that all the legal conditions for an extrajudicial settlement were met.
A description of the properties to be settled, such as the title number, location, lot size, and value.
The names of the heirs.
The division of the property among the heirs.
If the estate is a conjugal property, the document must state the nature of the property.
If there is personal property involved, the document must state that a bond was posted.
A pledge to publish the Deed of Extrajudicial Settlement in a daily or weekly newspaper. The Deed must be posted once a week for three consecutive weeks.
However, should the heirs disagree with the division of the estate, they must proceed with a judicial settlement.
Judicial partition of estate
In a judicial partition, the matter is taken to court. This happens if the deceased property owner has left a valid will or if there are disagreements or conflict among the heirs.
If there is a judicial partition of estate, the heirs must:
File a petition in the proper court (The Regional Trial Court of his/her place of residence if the property owner is a Philippine resident and any Regional Trial Court of his/her current province if the property owner is a foreign resident.)
Publish a notice of the settlement proceedings in a public newspaper, once a week for three consecutive weeks
The judicial partition of estate also takes longer than an extrajudicial partition. It could even take years before the property is even transferred to the heirs.