• When an heir is a minor

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    Our mother died intestate, so we came up with an Extrajudicial Settlement of Estate. Our father passed away before her, so the heirs left are me and three siblings, one of whom is still a minor.

    All taxes are already paid, and we are now transacting with the Register of Deeds. The problem is, they are demanding that we provide a court order approving the said settlement. Their reason is that there is a minor among the heirs.

    Do we really have to provide such a document? If so, who should we approach regarding this? Thank you in advance.
    Flor

    Dear Flor,
    While the basic principle of an extrajudicial settlement of estate is to settle the estate among heirs without any court intervention, Section 1, Rule 74 of the Rules of Court clearly states: “If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose…” Since one of your siblings is a minor, he or she must be represented by his or her judicial or legal representatives duly authorized for the purpose of executing an extrajudicial settlement of estate.

    Sec. 17(d) of A.M. No. 03-02-05-SC on the Rules of Guardianship of Minors also states that a guardian may consent to partition of real or personal property owned by the ward jointly or in common with others, but such consent will be valid only after the court authorizes the partition. In addition, Sec. 19 of the same Rule states that the appointed guardian must first file a verified petition requesting for authorization to encumber or sell the property if the property will be sold or encumbered.

    Sec. 2 of the same Rule states that any relative or other person on behalf of a minor or the minor himself, if he is fourteen years of age or over, may file for a petition for the appointment of a general guardian over the minor’s person or property, or both. The petition must be filed in the Family Court of the province or city where the minor resides. Section 6 of the same Rule states the following persons may be appointed as a minor’s guardian, in order of preference: (a) the surviving grandparent, (b) the oldest (over twenty-one years of age) brother or sister of the minor, unless unfit or disqualified, (c) the actual custodian of the minor, unless unfit or disqualified, and (d) any other person who the court deems would serve the best interest of the minor.

    According to you, you and your three siblings, one of whom is a minor, are the heirs of your mother. In order to successfully execute an extrajudicial settlement of estate, any of those qualified to become your minor sibling’s guardian must seek a court order appointing him/her as guardian. Your minor sibling may even seek the court’s appointment as guardian of his own person and property. If in the extrajudicial settlement of estate you are also dividing, selling, or encumbering a part of the property, the guardian must also seek court approval authorizing the said settlement.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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