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. The Extrajudicial Settlement for the deceased co-owner is not settled yet. Can the other co-owner file a Civil court against the wife of the deceased co-owner?
Dear Mary Jane,
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. Partition is the separation, division and assignment of a thing held in common among those to whom it may belong (Article 1079, New Civil Code of the Philippines). 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 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.
Need further information and assistance? Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 478 5826 or send an email to [email protected] for more information.