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estate, and be subject to the same liabilities for
debts, costs and expenses ; but the order in which
real and personal assets are applicable towards the
payment of funeral and testamentary expenses, debts
and legacies, is to remain the same as under the
existing law.
The heir-at-law, if not one of the
the next-of-kin, shall be equally entitled to the grant
with the next-of-kin (Section 7).
Nothing shall
affect any duty payable in respect of real estate, or
impose any additional duty thereon (Section 8).
It will be recalled that death duties payable in
respect of real estate are payable out of the estate
itself, while estate duty on personal property, for
which the personal representative
is personally
liable, ranks as a testamentary expense.
Freehold compulsorily registered land under the
Land Acts is excluded from Part II (Section 9),
because, by reason of Part IV of the Registration of
Title Act, 1891, this land already devolves and
descends as personalty.
It is to be noted that, as
most land comes within the provisions of Part IV
of the 1891 Act, the right of the heir-at-law to
succeed to the real property seldom arises in practice.
Nothing in Part II is to affect the operation of
Section 30 of the Conveyancing Act, 1881, which
provides that trust and mortgage estates in realty
shall devolve and become vested in the personal
representatives as if they were chattels real (Section
10).
PART III.—Executors and Administrators.
The old Statute of 1351, which provided that an
executor of an executor represents
the original
testator, is repealed and this enactment is now
repeated in modern form (Section 11).
The discretionary powers of the High Court,
formerly exercised by Section 78 of the Irish Probates
Act, 1857, now repealed, are considerably widened,
and the Court may nowr make a grant to any person
the Court may think fit, having regard to any special
circumstances whenever it is necessary or expedient
to do so, and may order such security as it deems
fit (Section 12). Where a person dies intestate, his
real and personal estate shall vest, until adminis
tration is granted in the President of the High Court,
in the same manner as it vested before 1859 m tne
Ordinary of the Diocese (Section 13). This ensures
that, for the purpose of proceedings concerned with
the property, the owership will at all times lie in
somebody.
Administration bonds, which enure for the benefit
of the President of the High Court, must be given
by an administrator to ensure that he will properly
and duly administer the estate. They are generally
in double the amount of the estate, unless reduced by
direction of the Probate Officer. An administration
bond must henceforth include provisions for the
payment of death duties, income tax, and surtax
(Section 14). A Grant of Probate or of Adminis
tration may be made henceforth in the case of real
estate, either separately or together with personal
estate (Section 15).
The High Court is henceforth empowered to make
grants of Probate or of Administration, where there
is no estate within the jurisdiction ;
this will for
instance facilitate a relative who proposes to sue as a
personal representative under the Fatal Injuries
Act, 1956 on behalf of the children of a person who
is killed in an accident, but who leaves no assets
(Section 16).
The law as to the preparation of
calendars of grants of probate and of administration
is
being
consolidated
and brought up-to-date
(Section 17).
Personal representatives may henceforth sell the
whole or any part of the real and personal estate of a
deceased for the purpose of not only paying the debts
but also of distributing the estate amongst the
persons beneficially entitled thereto, and shall as
far as practicable give effect to the wishes of
beneficiaries of full age—or of the majority of them.
Where land is settled by will, and there are no
trustees of the settlement, the personal represen
tatives proving the will shall for all purposes be
deemed to be such trustees until trustees of the
settlement are appointed by the Court (Section 18).
Note that the power of sale extends henceforth to
all land.
A
bona fide
purchaser for value from the personal
representatives of any property, being the whole
or part of the real or personal unregistered estate
of the deceased, shall be entitled to hold that property
freed and discharged from any debts or liabilities
of the deceased and from all claims of beneficiaries,
and from all claims of creditors of the deceased
except claims of which the purchaser had actual
or constructive notice at the time of purchase
(Section 19).
Personal representatives may at any time after the
death execute an assent vesting any estate or interest
in any part of the land to the person entitled, or may
transfer such estate or interest to the person entitled;
they may also make such transfer or charge free
from or subject to any charge ;
if made subject to a
charge, all liabilities of the personal representatives
in relation to such land shall cease. The Court is
entitled to make an order of transfer, if one year
has elapsed after the death, and the personal represen
tatives have taken no steps in the matter (Section 20).
The
statutory covenants
against
incumbrances
implied in a deed of conveyance by a personal
representative shall also be implied in any assent.
As an assent is deemed to be a conveyance henceforth
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