When a person dies intestate (which means he left no will) the competent court shall appoint a qualified administrator for the estate. The same rule applies even if the person dies testate (which means that he left a will) if the will failed to name an executor in his will, or if the named executor is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court. One exception to this is the extrajudicial settlement of estate.
We have a previous discussion on wills and probate of wills (see Basic Concepts in Estate Proceedings; Basic Discussion on Last Will and Testament and Holographic Wills). A will must be presented in court, through probate proceedings, and this judicial process may take some time. A much faster way of disposing of properties left behind by the deceased person, known as the decedent, is through an extrajudicial settlement of estate.
An extrajudicial settlement of estate, however, presupposes that the decedent left no will. As previously noted, a person who has custody of a will is under obligation to produce it. The requirements for a valid extrajudicial settlement of estate are:
- 1. The decedent left no will.
- 2. The decedent left no debts, or if there were debts left, all had been paid.
- 3. The heirs are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives.
- 4. The partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.
The affidavit must be executed by the heirs and must contain the necessary allegations to support a valid extrajudicial settlement of estate. The affidavit shall be published in a newspaper of general circulation, once a week for three (3) consecutive weeks.