Dear Atty. Duran-Schulze,
The co-owner of the estate wants to execute a partition of the land. One of the co-owners died 20 years ago and his Extrajudicial Settlement is not settled yet. Can the other co-owner file a Civil Court against the wife of the deceased co-owner?
Dear Writer,
Yes, any co-owner can file for partition. The general rule is that the parties may file for partition. The partition does not prescribe.
Since the land is in a state of mutual ownership through inheritance, partition is resorted to when owner’s decide to get his/her share of the property allotted to him. According to Article 1079 of the New Civil Code of the Philippines, partition is the separation, division and assignment of a thing held in common among those to whom it may belong. The subject of division may be the thing itself or its value. It is done by dividing the property according to the shares to which each of the parties is entitled to in law as applicable to them.
Any of the co-owners can resolve the partition if they choose to do so.
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 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 eighteen (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
However, should the heirs disagree with the division of the estate, they must proceed with a judicial settlement.
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.
Do you have any further questions that need to be addressed? Talk to our team at Duran & Duran-Schulze Law to know more. You may reach us at (+632) 8478 5826 or +63 917 194 0482, or email info@duranschulze.com for more information.
4 Responses
Dear attorney,
I have a concern about the real estate left of our late grand mother which is the owner of the property and my mother(daughter in law) is the co owner. How we can settle to released the title of that property? The property has already fully paid. The owner has left 1 child and the other children’s has already deceased. What are those requirements needed to produce? The owner has no last will left.
One of our Co owner do not sign the judicial partition what shall we do. Can I alone get my share?
Dear Atty. Duran-Schulze,
What happens if the all 3 heirs (children, as the father also passed) are residing in the US, there is no will written and 2 of the heirs signed (in the US & apostilled) an affidavit of renunciation of mother’s inheritance because they don’t want to travel to PI and deal with the inheritance/taxes/paperwork, will the remaining heir be able to do an affidavit of self adjudication when she travels to the PI to settle the estate? Thank you so much for in advanced to help clarify this matter!
Good day. I really appreciate your effort regarding my concern. You are the only one who responded back to me without asking any payment. I really want to Thank You for this and I am more than obliged and willing to leave a positive feedback on your website. I just want to add one more question, if it’s not much to ask. What if the deceased/original owner verbally told one of the legitimate child with the rest of the family (spouse, legitimate children, all of the deceased siblings) hearing everything what he said, that he/she will be the one to own a specific part of the property, can the spouse (if ever died or still living), change it on the will that she will leave to the remaining legitimate children? Thank you in advance if ever you will respond to my last question. I know I am asking you too much now, but I would like to Thank You from the bottom of my heart, whether you will respond or not. God Bless you and your Family😊.