What to do when your spouse passes away

Losing a loved one is difficult for everyone, but losing your spouse or life partner can be something else entirely. On top of your grief, you may suddenly be faced with a new responsibility: dealing with the estate.

Perhaps you are feeling overwhelmed with what needs to happen next. There may be a funeral to plan, family to notify, documents to locate and, somewhere in between all of that, difficult legal questions begin to arise. Is there a will? Who inherits? What happens to the bank accounts? What if there is debt?

For many surviving spouses, those questions can feel endless. Some arrive at an attorney's office carrying a folder of documents they have been meaning to deal with for weeks or even months, not because they are irresponsible, but because grief can make even the simplest tasks feel overwhelming.

While no article can make the process emotionally easy, understanding the main steps can help make the legal side feel less overwhelming.

Step 1: Determine whether there is a will

The first document you will usually need is the death certificate.

After that, ask a simple question: is there a will?

If the answer is yes:

• Locate the original will.
• Determine who the nominated executor or executrix is.

If you believe there may be a will but cannot find it, you may need to contact:

• the deceased's attorney
• the deceased's bank
• insurance companies
• the person who usually kept important documents on behalf of the deceased

If the answer is no:

• The estate will generally be administered in terms of the Intestate Succession Act.
• This means the law determines who inherits from the estate.

In many cases, a surviving spouse may nominate themselves to act as executor or representative of the estate, depending on the value of the estate and the requirements of the Master.

It is important to remember that even if you are nominated in the will as executor, you may not legally administer or distribute estate assets until the Master of the High Court formally appoints you by issuing either Letters of Executorship or Letters of Authority.

Step 2: Report the estate to the Master of the High Court

The next step is to report the estate to the Master of the High Court with the necessary jurisdiction.

This process is generally the same whether:

• there is a will and you are the nominated executor
• there is no will and you are applying to be appointed as the estate representative

At this stage you will usually apply for either:

Letters of Executorship

These are generally required where the estate is valued at more than R250 000. Estates administered under Letters of Executorship usually involve a more formal administration process.

Letters of Authority

These are generally issued where the estate is valued at less than R250 000 in terms of section 18(3) of the Administration of Estates Act. These estates usually follow a simplified administration process.

Common forms and supporting documents

The following forms are commonly required when reporting an estate:

• J294 - Death Notice
• J190 in duplicate - Acceptance of Trust as Executor
• J155 - Undertaking and Acceptance of Master's Directions
• nomination to act as executor
• affidavit or declaration
• J192 - Particulars of Next of Kin
• J243 - Inventory
• declaration of subsisting marriages

Supporting documents commonly include:

• a certified copy of the executor or executrix's identity document
• a certified copy of the marriage certificate, if applicable
• a copy of the deceased's identity document
• copies of minor heirs' identity documents, where relevant
• the original will, if applicable
• a certified copy of the death certificate

Depending on the circumstances of the estate, the Master may request additional documents.

How to submit the estate

The Master's Office has an online portal that allows members of the public to register estates electronically. You may create a profile and follow the guided process to report the estate online.

Alternatively, the estate may still be lodged manually at the relevant Master's Office.

Bond of security: what does it mean?

Many surviving spouses become concerned when they hear the term "bond of security".

A bond of security is essentially a form of financial security lodged with the Master to protect heirs and creditors against potential misconduct or mismanagement by the executor.

Whether security is required depends on several factors, including:

• whether there is a valid will
• whether the will exempts the executor from providing security
• the relationship between the executor and the deceased

In many cases, a surviving spouse nominated as executor in a valid will may be exempt from furnishing security if the will specifically provides for that exemption.

However, the Master may still require security in certain circumstances.

Even where a surviving spouse is appointed as executor, many people still choose to appoint an attorney as their agent to assist with:

• correspondence with the Master
• estate advertisements
• drafting the Liquidation and Distribution Account
• transfers of assets
• the overall administration process

This can often ease the administrative burden during an already difficult time.

Step 3: Once letters of executorship or authority have been issued

Once the Letters of Executorship or Letters of Authority have been issued, the estate administration process can formally begin.

Advertise the estate

Where Letters of Executorship have been issued, the executor must place advertisements in:

• the Government Gazette
• a local newspaper

These advertisements call upon debtors and creditors to lodge claims against the estate within 30 days.

In many section 18(3) estates administered under Letters of Authority, this advertisement process may not be required.

Notify SARS

The executor must notify SARS of the death and provide:

• the death certificate
• Letters of Executorship or Authority
• any additional documentation SARS may require

The deceased's tax affairs generally need to be brought up to date before the estate can be finalised.

Open an Estate Late bank account

An "Estate Late" bank account must be opened in the name of the deceased estate.

This account is used to:

• receive estate funds
• collect proceeds from investments or policies
• pay estate expenses
• pay heirs where appropriate

Funds from the deceased's bank accounts and certain investments are generally transferred into this account during the administration process.

Draft the Liquidation and Distribution Account

Once the creditor period has expired and the estate assets and liabilities have been determined, the executor drafts the Liquidation and Distribution Account, often called the L&D Account.

The L&D Account is essentially a financial summary of the estate. It reflects:

• the assets
• liabilities
• administration costs
• how the estate will ultimately be distributed to heirs and beneficiaries

Distribution must take place either:

• in accordance with the will
• in terms of the Intestate Succession Act where there is no valid will

The L&D Account is submitted to the Master for examination and approval.

Importantly, the estate may not yet be distributed at this stage.

Advertise the Liquidation and Distribution Account

Once approved by the Master, the L&D Account must again be advertised in:

• the Government Gazette
• a local newspaper

The account then lies open for inspection for a further period of 21 days, during which interested parties may lodge objections.

Obtain final clearances

If no objections are received, the executor will generally request:

• confirmation from the Master that no objections were lodged
• the necessary tax compliance confirmations from SARS

Only once these requirements have been satisfied may the estate proceed to final distribution.

Step 4: Distribute the estate

Once the required approvals and clearances have been obtained, the executor may begin distributing the estate.

This may include:

• paying cash inheritances to heirs
• transferring property to beneficiaries
• transferring motor vehicles
• transferring investments
• settling outstanding estate liabilities

Depending on the complexity of the estate, these transfers can take time to finalise.

It is important not to distribute estate assets prematurely, as creditors, taxes and administration costs must first be properly dealt with.

Step 5: Finalise the estate

Once all heirs and beneficiaries have received their inheritances and all estate liabilities have been settled, the executor must provide the Master with proof that the estate has been properly finalised.

This is usually done by submitting:

• proof of payment to heirs and beneficiaries
• proof of asset transfers where applicable
• an affidavit confirming that the estate has been distributed in accordance with the approved Liquidation and Distribution Account

Once the Master is satisfied that the estate has been properly administered, the estate may be finalised and the executor released from their duties.

Final thoughts

Estate administration can feel intimidating, particularly while grieving the loss of someone close to you. Many surviving spouses find themselves dealing not only with emotional loss, but also frozen bank accounts, paperwork, financial uncertainty and family expectations.

While the legal process can appear complicated at first, taking it step by step often makes it far more manageable.

Every estate is different and the administration process may vary depending on:

• the size of the estate
• whether there is a valid will
• the type of assets involved
• whether disputes arise between heirs or beneficiaries

This article is intended as a general guide and should not be regarded as legal advice specific to your circumstances.