Answer to a question from a reader

Can a wife inherit a letter of authority after her husband died, but while one of his brothers is still alive?

The short answer

No, because his brother was nominated to have the letter of authority.

The whole question

I need clarity on a property that was owned by a father. He passed away and left three sons. The older brother was married. He had the two younger brothers sign to give him authority of the property, as he was the only one working at the time. But now only one brother is still alive. Is it possible for the wife to take over on the letter of authority (LOA) while the one brother is still alive? Does the nomination of the (now deceased) older brother to have the LOA by the two younger ones have anything to do with the older brother’s wife? Lastly, how long does LOA last?

The long answer

A letter of authority (LOA) is usually valid for twelve months. If the validity of the LOA is longer or shorter than 12 months, it should be stated in the LOA.

What the LOA does is to give a person the right and the duty to administer the estate. That means seeing that any debts are paid first and after that is done, that the assets are distributed according to the Intestate Succession Act of 1987, as the father did not leave a will indicating who should inherit his property. Does the nomination of the (now deceased) older brother to have the letter of authority by the two younger ones have anything to do with the older brother’s wife?

If there was no surviving spouse, the three brothers would inherit the property equally, as intestate succession is based on blood relationship in the following order:

  • The spouse/s of the deceased

  • The descendants of the deceased

  • The parents of the deceased (Only if the deceased died without surviving spouse or descendants)

  • The siblings of the deceased (Only if one or both parents are predeceased)

  • When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.

  • When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but

  • Each wife should inherit at least R 250 000

  • When the estate is not large enough to allow each wife to inherit

R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything. 

The LOA given to the older brother does not involve his wife and the LOA cannot be inherited by the wife. Only the person nominated can exercise the authority given by the LOA.

It may be a good idea for both you and the surviving brother to get some legal advice on what your rights are in relation to the property going forward. You could ask a paralegal organisation like The Black Sash for advice, or you could consult Legal Aid. 

Legal Aid is a means-tested organisation that is supposed to provide legal assistance to people who can’t afford a lawyer. If the surviving brother is still a minor, Legal Aid must assist in terms of the 2010 Co-operation Agreement between themselves and the Department of Justice, in which they agreed to administer deceased estates to protect the interests of minor children who are heirs.

These are their contact details:

  • The Black Sash National Toll-free Help Line for free paralegal advice: 072 66 33 739

Email: [email protected]

You can also send a text or a please-call-me and a paralegal will be in touch 

 

  • Legal Aid

[email protected] (link sends email)

Legal Aid Advice Line (Toll-free): 0800 110 110

Please-Call-Me number: 079 835 7179.

Answered on Oct. 15, 2020, 12:16 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.