Only compulsory heirs can settle estate of deceased parent

Persida Acosta

Persida Acosta

Dear PAO,

My question is about the land left by my grandfather. Some of my father’s siblings died before my grandfather and my father is willing to waive his share in the land. Can the children of the heirs of my grandfather, on behalf of their parents, make an agreement regarding the settlement and/or partition of the land?


Dear CC,

Upon your grandfather’s death, all his properties, rights and obligations to the extent of his inheritance shall be transferred to his heirs through succession (Article 774, Civil Code of the Philippines). A person’s compulsory heirs are the following: 1) legitimate children and descendants, with respect to their legitimate parents and ascendants; 2) in default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3) the widow or widower; and 4) acknowledged illegitimate children (Article 886, Civil Code of the Philippines).

The children of the heirs of your grandfather cannot make an agreement on behalf of their parents regarding the settlement of the land left by your grandfather. The settlement of the estate of your grandfather shall be undertaken by his children who are his compulsory heirs. His grandchildren may only participate in the settlement of the estate if they are exercising their right of representation. This is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. Right of representation exists in the following instances: 1) if the heir dies before the decedent or the testator; 2) if the heir is incapacitated to receive the inheritance; and 3) disinheritance in case of testamentary succession (Edgardo L. Paras, Civil Code of the Philippines Annotated, Vol. 3 (15th Ed.), page 464).

Hence, your father and his siblings who are still alive and the children of his siblings who predeceased your grandfather may settle the properties left by your grandfather either judicially or extrajudicially. Judicial settlement is done by filing a petition before the Regional Trial Court of the place where your grandfather resides at the time of his death (Section 1, Rule 73, Rules of Court). However, if your grandfather did not leave debts and all his heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the heirs, including the grandchildren exercising their right of representation, may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition (Section 1, Rule 74, Rules of Court). In either case, your father or any other heir, may waive his or her respective shares in the inheritance.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.


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