Judicial Settlement as an Alternative When Heirs’ Whereabouts Are Unknown

In the Philippines, settling an estate becomes complicated when one or more heirs cannot be located. This is a common issue in families with members who have migrated, lost contact, or deliberately avoided participation. While many assume the process must stop until all heirs appear, the law provides a practical solution: judicial settlement of the estate.

This article explains how judicial settlement works when heirs are missing, the legal basis behind it, and the step-by-step process to move forward.

Why Extrajudicial Settlement Fails When Heirs Are Missing

An extrajudicial settlement requires that:

• All heirs are of legal age (or represented), and

• All heirs agree and sign the settlement

If even one heir is missing, uncooperative, or unknown, this route is no longer valid. Proceeding without them risks nullity and future legal disputes.

This is where judicial settlement becomes necessary.

Legal Basis for Judicial Settlement

The governing rule is found in the Rules of Court:

“When a person dies leaving property in the Philippines, his will shall be proved, or letters of administration granted…”

And more importantly:

“The court shall order the distribution of the estate to the persons entitled thereto.”

Additionally, when heirs are unknown or cannot be located:

“Unknown heirs or persons interested in the estate shall be made parties by publication.”

This means the court itself ensures due process—even for heirs who cannot be found.

What Is Judicial Settlement?

Judicial settlement is a court-supervised process where:

• The estate is administered under court authority

• All heirs are identified, notified, and represented

• The court ultimately approves the distribution

It is slower and more costly than extrajudicial settlement, but it provides legal protection and finality, especially in complicated situations.

Step-by-Step Process When Heirs Are Missing

1. File a Petition for Settlement of Estate

A petition is filed in the Regional Trial Court where the deceased resided.

The petition should include:

• Death certificate

• List of known heirs

• Description of the estate (land, bank accounts, etc.)

• Explanation that some heirs are missing or unknown

2. Request Appointment of an Administrator

Since not all heirs are present, the court appoints an administrator who will:

• Manage the estate

• Protect assets

• Represent the interests of all heirs (including absent ones)

3. Court Orders Publication of Notice

The court will require publication of the proceedings in a newspaper of general circulation.

This serves as legal notice to:

• Unknown heirs

• Missing heirs

• Creditors

Publication typically runs once a week for three consecutive weeks.

4. Notification and Representation of Missing Heirs

If heirs are:

• Known but unreachable → notice is sent to last known address

• Completely unknown → covered by publication

The court may appoint a guardian ad litem or representative to protect their interests.

5. Inventory and Appraisal of Estate

The administrator submits a full inventory of assets and liabilities.

This ensures:

• Transparency

• Proper valuation

• Protection against concealment

6. Payment of Debts and Taxes

Before distribution:

• Estate debts must be settled

• Estate tax must be paid

This step is crucial, as unpaid obligations can delay or invalidate distribution.

7. Project of Partition

A proposed division of the estate is submitted to the court.

It includes:

• Shares of each heir

• Allocation of specific properties

Even missing heirs are assigned their rightful share.

8. Court Approval and Distribution

The court reviews and approves the partition.

Once approved:

• Titles can be transferred

• Shares belonging to missing heirs are held in trust or safeguarded

What Happens to the Share of Missing Heirs?

Their share is not forfeited.

Instead:

• It may be held by the administrator

• It can be deposited in court

• It remains claimable if the heir later appears

This protects both the absent heir and the other heirs from future disputes.

Advantages of Judicial Settlement in These Cases

• Legally binding and court-approved

• Protects against future claims

• Allows settlement even without all heirs present

• Ensures fairness and due process

Practical Considerations

Judicial settlement is not the fastest option, but it is often the only safe option when heirs are missing.

Expect:

• Longer timelines (often months to years)

• Legal and court costs

• More documentation and compliance

However, these are outweighed by the legal certainty it provides.

When heirs cannot be located, delaying estate settlement indefinitely is not necessary—and often not wise. The law provides a clear pathway through judicial settlement, ensuring that the estate can be properly administered while safeguarding the rights of all parties involved.

If handled correctly, this process allows families to move forward without risking future legal complications, even in the absence of some heirs.

Source: Ziggurat Real Estate

Why family bullying over inheritance has become rife

UK Cost of living is making relatives impatient for their money.

Trillions of pounds are expected to be passed down through families over the next 30 years in a “great wealth transfer”.

However, as households are squeezed by rising prices, increasing numbers of older people are being pestered to hand over money by impatient “entitled” relatives. But this pressure to give up their assets can amount to financial abuse, campaigners warn. “This is not just a growing trend but an epidemic,” said Richard Robinson of Hourglass, a charity that campaigns against the abuse of older people.

This type of financial abuse is distinct from fraud or scams because it is not perpetrated by strangers, but a trusted person in the victim’s life. More than half of perpetrators are an adult child of the victim, according to research by Hourglass, and 81 per cent are a family member.

Older people are being manipulated to hand over cash to family members struggling with the cost of living.

“This is a massively underplayed issue in all walks of society, something we’ve been calling for urgent governmental action on for many years,” Robinson said. The charity supports 75,000 victims a year, up from about 4,000 in 2018.

Vicky Reynal, a money psychotherapist, said a common reason for “inheritance impatience” is a sense of entitlement to the victim’s estate. “The economic climate we live in is creating a lot of tension,” she said. “Handouts from parents are seen as increasingly necessary, and inheritance seems too far down the line to make much of a difference.”

Housing and tax pressures

Many families are seeking early access to inheritances to get on the property ladder. The average house price in the UK has more than tripled from £84,000 in 2000 to £293,000 today, according to the Office for National Statistics.

As a result, 57 per cent of renters believe that buying a home is impossible without family help, Barclays found. Rising tax pressures also drive demands for family handouts. The inheritance tax-free threshold will be frozen at £325,000 until at least 2030, and pension savings will be included in estates from April 2027.

This will mean many more estates facing a 40 per cent tax bill. And the seven-year rule, which exempts from inheritance tax gifts of money, provided the donor lives for seven years after making the gift, adds a sense of urgency. Now family members are pushing to receive sums sooner.

The Institute for Fiscal Studies estimates that almost all of the £17 billion gifted or lent by pensioners each year is given to their adult children. While most of this money is given freely and lovingly, some pensioners may be coerced into giving it away earlier than planned, often through emotional manipulation.

“We’re definitely seeing people with more of a sense of entitlement or ownership of their future inheritance, as opposed to anything they might receive as a boon or a gift,” said Stuart Downey from TWM Solicitors, based in the southeast. Reynal described how she has seen clients struggle to refuse their children’s demands for money.

Some children even use threats such as cutting them off from their grandchildren or no longer visiting if the money is withheld. Many victims fear they will be sent into a care home against their will. Downey said he has seen many clients’ families place their elderly relative in a far cheaper care home than they could afford, to save their inheritance.

This is known as “inheritance preservation”, where family members block pensioners from spending their money in the hope of taking it themselves.

Taking advantage

Callers to the Hourglass helpline have suffered financial losses of more than £53 million in the past three years. But in reality this figure is probably much higher, because only 14 per cent of callers disclosed the amount they had given away.

Robinson said that many older people were reluctant to report how much they had lost. They didn’t consider transferring money to family members as abuse and didn’t recognize that they may have been manipulated.

The attitudes of both victim and perpetrator are a big obstacle to the prevention of this type of abuse. In England 25 per cent of people do not believe that taking items from an older relative’s home without asking is a form of abuse, according to a survey of more than 2,000 people conducted by YouGov for Hourglass.

And 26 per cent of respondents did not believe that using power of attorney over an older relative for personal financial gain was abuse, nor that family members trying to change the wills of older relatives was a form of abuse.

At the same time, many victims do not want to see, or perhaps admit, that a family member may be taking advantage of them. “Most people don’t believe they’re being abused,” Robinson said. “They trust and love those people, who are their family and are there to look after them. They believe that if they call them out as abusers, they’ll lose that support.”

How can people protect themselves?

Reynal said families must learn to speak openly about finances and inheritance, and added that for those passing down an estate, “it’s important to be clear about why you’re doing what you’re doing”.

Family members should also try to empathise with their older relatives. “Step into the shoes of the parents to empathise with the impact of those demands being made,” she said. Older people can create a lasting power of attorney while they have mental capacity.

This gives someone the authority to manage their finances if they become unable to do so. It is recommended to seek professional guidance before making any decisions.

While there are some tools that can be used to help protect finances, such as bank account controls, Robinson said: “People are craving inheritance like there’s no tomorrow, and the safeguards are simply not there.” 

Source: The Times

Can We Execute a Joint Will?

When planning for the future, many couples naturally consider the idea of simplifying things—including their wills. One common question that arises is: “Can we execute a joint will?” The short answer is: it depends on your country’s laws, but in most places, joint wills are possible but generally discouraged. Let’s explore why.

What Is a Joint Will?

A joint will is a single legal document created by two or more people, typically spouses or partners, outlining how their assets will be distributed after both of them pass away. It usually states that when one person dies, the surviving partner inherits everything, and when the second person passes, the assets go to the designated beneficiaries (like children or relatives).

Are Joint Wills Legal?

In many countries, including the Philippines, the United States, and the UK, joint wills are generally discouraged and sometimes even considered invalid, depending on how they're structured. Instead, what is more commonly allowed is a mutual will or mirror wills, where each partner creates a separate will with identical terms.

For example:

• Philippines: Joint wills are not valid under Philippine law. Article 818 of the Civil Code specifically prohibits joint wills, even if executed abroad by Filipinos.

• United States: Some states allow joint wills but courts often discourage them due to potential complications.

• United Kingdom: Joint wills are technically allowed but rarely used in modern practice due to legal and practical downsides.

  
  

Why Are Joint Wills Discouraged?

Lack of Flexibility

Once one partner dies, a joint will usually cannot be changed—even if circumstances change, like remarriage, estrangement from beneficiaries, or new grandchildren.

Legal Complications

If poorly drafted, joint wills can lead to court battles, misunderstandings, and disputes among surviving family members.

Better Alternatives Exist

Most estate lawyers recommend creating mirror wills or mutual wills, which are separate documents but can reflect the same intentions. These are more flexible, legally sound, and easier to amend if needed.

What’s the Best Option?

• Mirror Wills: Each partner creates a separate will leaving everything to the other, then to agreed beneficiaries.

• Mutual Wills (with contract): Legally binding wills that cannot be changed after one partner dies, but with clearer enforceability than joint wills.

• Living Trusts: In some cases, a trust may offer more flexibility and privacy for asset distribution.

  
  

Final Thoughts

While the idea of a joint will sounds simple and romantic—“one will for both of us”—the reality is that it can lead to more problems than solutions. In most jurisdictions, joint wills are either invalid, problematic, or outdated in modern estate planning.

💡 Tip: Always consult with a qualified estate lawyer familiar with the laws of your country or region. They can help you create a legally sound and flexible estate plan that honors your wishes without unnecessary risks.

Source: Ziggurat Real Estate