What Is an Extrajudicial Settlement with Waiver of Rights?
An Extrajudicial Settlement of Estate with Waiver of Rights is a notarized public instrument in which the heirs of a person who died without a will settle the estate among themselves under Section 1, Rule 74 of the Rules of Court, and one or more heirs waive — give up — their hereditary share. It is the standard instrument when, for example, the children all agree to let the surviving parent keep the family home, or one heir steps back from the inheritance in favor of the others.
It is also known as a Deed of Extrajudicial Settlement with Waiver of Rights, an EJS with Waiver, a deed of waiver of rights, or a renunciation of inheritance — in Filipino, pagtalikod sa mana — different names for the same Rule 74 instrument that records an heir giving up a share.
The waiver comes in two forms, and which one you choose changes the tax treatment:
- In favor of a specific co-heir — the waiving heir directs their share to a named person. The BIR treats a gratuitous waiver of this kind as a donation (donor's tax), or, if made for a price, as a sale/assignment of hereditary rights (capital gains or income tax plus documentary stamp tax).
- General renunciation (repudiation) — the heir simply gives up the share without naming a recipient. Under Civil Code Articles 1015–1018, the renounced share accrues to the remaining heirs by right of accretion, and no donor's tax applies.
When Can You Use an Extrajudicial Settlement with Waiver?
The same three Rule 74 conditions apply as for any extrajudicial settlement:
- The decedent died intestate (without a valid will)
- The estate has no outstanding debts at the time of settlement (or debts have been paid)
- All heirs are of legal age — if any heir is a minor, court involvement or a judicial guardian is required
One more point is specific to the waiver: a general renunciation is total. Under Civil Code Article 1041, an heir cannot accept part of the inheritance and repudiate the rest — so a partial, property-specific waiver is only available when the waiver is made in favor of a co-heir.
Required Elements of an EJS with Waiver of Rights
- Decedent's identity — full name, date and place of death, civil status
- Surviving heirs — full names, nationality, civil status, relationship to the deceased, addresses; with each waiving heir identified
- Property description — the real (and personal) property of the estate
- Declaration of intestacy and no debts
- Adjudication clause — how the estate is divided among the heirs before giving effect to the waiver
- Waiver clause — the waiving heir(s) WAIVE, RENOUNCE, CEDE, TRANSFER, and CONVEY their share, either in favor of a named co-heir or by general renunciation/accretion
- Tax acknowledgment — donation, sale of rights, or accretion, depending on the waiver type
- Publication undertaking — once a week for 3 consecutive weeks per Rule 74
- Signatures and acknowledgment — all heirs sign and acknowledge before the notary
Free Extrajudicial Settlement with Waiver of Rights Template
In this sample, the two children waive their shares gratuitously in favor of their surviving mother (a waiver in favor of a co-heir).
We, the undersigned heirs of the late Pedro Dela Cruz, namely: Juan Dela Cruz, Filipino, of legal age, single, residing at 123 Mabuhay Street, Barangay San Antonio, Quezon City, Son of the deceased; Ana Dela Cruz, Filipino, of legal age, single, residing at 456 Mabini Street, Barangay Poblacion, Makati City, Daughter of the deceased; and Maria Dela Cruz, Filipino, of legal age, widowed, residing at 123 Mabuhay Street, Barangay San Antonio, Quezon City, surviving spouse of the deceased; hereby declare that:
1. Pedro Dela Cruz died on March 10, 2025 at Quezon City, and is survived by his/her surviving spouse, Maria Dela Cruz, and by the other undersigned heirs.
2. The undersigned are the sole and only surviving legal heirs of the deceased, there being no other heirs, compulsory heirs, or persons legally entitled to participate in the estate known to us, and all of us are of legal age with full civil capacity to execute this instrument.
3. The deceased left the following real property:
a parcel of residential land with an area of 250 square meters covered by Transfer Certificate of Title No. T-123456 of the Registry of Deeds of Quezon City, together with the improvements thereon
That the parties acknowledge that the above-described property is conjugal partnership property, and that only the share, rights, and interests of the deceased are the subject of this settlement, without prejudice to the lawful rights of the surviving spouse and other persons, if any.
4. The deceased died intestate and left no will; to the best of our knowledge, the deceased left no debts, obligations, or claims unpaid at the time of death and at the time of this settlement; and no proceedings for the settlement, administration, or probate of the estate of the deceased are pending before any court.
5. The heirs hereby adjudicate and divide the estate rights, shares, and interests of the deceased in the above-described property as follows (before giving effect to the waiver hereinbelow):
The heirs hereby adjudicate the estate to themselves in equal undivided (pro indiviso) shares, share and share alike.
6. Juan Dela Cruz and Ana Dela Cruz, for and in consideration of love, affection, and natural generosity, do hereby WAIVE, RENOUNCE, CEDE, TRANSFER, and CONVEY all their rights, shares, interests, and participation in the estate of the late Pedro Dela Cruz in favor of Maria Dela Cruz, who shall hold and own the same to the exclusion of the waiving heirs.
7. The parties warrant that they are the lawful heirs of the deceased, with full right and authority to execute this instrument and to make the foregoing adjudication and waiver; and they hereby agree to hold one another free and harmless from, and to indemnify one another against, any and all claims, liabilities, or demands that any other person may lawfully assert in respect of the estate, including any claim under Rule 74 of the Rules of Court.
8. The parties hereby undertake to cause the publication of this Extrajudicial Settlement of Estate with Waiver of Rights in a newspaper of general circulation once a week for three consecutive weeks, in accordance with Rule 74 of the Rules of Court.
9. The parties acknowledge that this settlement is without prejudice to the rights of creditors, heirs, or other persons who may have lawful claims under Rule 74 of the Rules of Court, within the period provided by law.
10. This instrument is executed for purposes of settlement, partition, adjudication, waiver, publication, estate tax processing, issuance of the Certificate Authorizing Registration, and registration with the Register of Deeds and other government offices as may be required by law. The parties further acknowledge that the waiver of hereditary rights in favor of a specific co-heir constitutes a donation, and that the donor's tax due thereon, if any, shall be for the account of the waiving heir(s) in accordance with the National Internal Revenue Code.
IN WITNESS WHEREOF, we have hereunto set our hands this January 15, 2026 at Quezon City, Philippines.
BEFORE ME, a Notary Public for and in the above jurisdiction, personally appeared the following parties:
| Name | Competent Evidence of Identity |
|---|---|
| JUAN DELA CRUZ | Philippine Passport No. P2345678B |
| ANA DELA CRUZ | Philippine Passport No. P3456789C |
| MARIA DELA CRUZ | Philippine Passport No. P1234567A |
known to me or identified by me through competent evidence of identity to be the same persons who executed the foregoing instrument and acknowledged that the same is their free and voluntary act and deed.
This instrument consists of ___ pages, including the page on which this acknowledgment is written, and has been signed by the parties and their instrumental witnesses on each and every page hereof.
WITNESS MY HAND AND SEAL on the date and at the place first above written.
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Unlock & Generate — ₱199 or get All-Access — ₱999/30 daysHow to Decide: Waiver in Favor vs. General Renunciation
- Is there a specific person who should get the share? If yes — say, the children want the surviving parent to keep the home — use a waiver in favor of a co-heir. Expect donor's tax (gratuitous) or capital gains/DST (for a price).
- Do you just want out, with no preference? Use a general renunciation. The share accrues to the remaining heirs by accretion under Articles 1015–1018; no donor's tax.
- Waive everything or only one property? A property-only waiver is available only in the in-favor mode — a general renunciation is all-or-nothing under Article 1041.
- Confirm the tax exposure. Before signing, have a lawyer or accountant confirm whether donor's tax, capital gains tax, or only the estate tax applies to your situation.
After Signing: Steps to Complete the Transfer
- Notarize — all heirs, including the waiving heirs, appear before the notary
- Publish — once a week for 3 consecutive weeks; obtain the Affidavit of Publication with tearsheets
- File with the BIR — pay the 6% estate tax, plus donor's tax or capital gains/DST on the waiver if applicable; obtain the Certificate Authorizing Registration (CAR/eCAR)
- Pay the transfer tax — at the local government treasurer's office
- Register with the Register of Deeds — submit the deed, Affidavit of Publication, and BIR CAR to transfer the title to the heir(s) who received the share