As a couple, you may be thinking of leaving everything to each other. If one of you dies, the survivor will become what is known as the 'executor' of the deceased's will. This means that you have various powers including the powers to sell, acquire and distribute assets of the estate. An application for probate in most cases is required for the executor to exercise these powers. Probate is the process of the High Court accepting the validity of a will and giving authority to the executors to act in that capacity. If you leave everything to each other the survivor is the 'sole beneficiary' meaning that the survivor has a right to any assets of the estate after estate expenses and debts are paid. Even if one of you has already died some time before the death of the survivor, you most likely have a provision within your wills for 'substituted executors' who can act as executors in the place of the deceased executor.

Problems might occur where you die shortly after each other. Often a will states that if the survivor is alive for at least one calendar month then the survivor is appointed executor. Substituted executorship usually become effective if the survivor dies within a month of the deceased. But what happens if the survivor dies after a month? This situation causes problems around the appointment of substituted executors.

We have come across the following scenario. If the surviving spouse (A) who was left everything by the deceased spouse (B) happens to die without being granted probate of B's estate, B's substituted executors cannot apply for probate of B's estate.

What we had to do for B's estate was apply for letters of administration (with will annexed) through A's substituted executors. This meant that we had to wait until probate was granted for A's estate which was not an instantaneous process.