| Preface |
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v | |
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xxiii | |
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xxv | |
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Table of Statutory Instruments |
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xxxi | |
| Authors |
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xxxiii | |
| Introduction |
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xxxv | |
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Introduction to Will Drafting |
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1 | (6) |
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The Constituent Elements of a Will, Including the Statutory Formalities |
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1 | (5) |
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Of what can a will dispose? |
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When does a will take effect? |
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The role of the solicitor in making a will |
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Statutory formalities for the making of a will |
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The Basic Elements of a Will |
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6 | (1) |
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Basic Elements of a Will and Mutual Wills |
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7 | (33) |
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Introduction: The Constituent Elements of a Will |
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7 | (1) |
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Name and Address of the Testator |
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7 | (1) |
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Revocation of Former Wills |
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7 | (3) |
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Best practice and common errors |
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The Appointment of Executors |
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10 | (3) |
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Best practice and common errors |
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13 | (1) |
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13 | (1) |
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Best practice and common errors |
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Provision for Specific or Pecuniary Bequests in the Form of Legacies/Devises |
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14 | (8) |
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Best practice and common errors |
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The Establishment of a Trust (If Required) |
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22 | (1) |
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23 | (2) |
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Best practice and common errors |
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Enabling Clauses: Advancement, Appropriation, Apportionment, Charging Clause for Executors/Trustees |
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25 | (7) |
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32 | (1) |
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32 | (1) |
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Best practice and common errors |
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32 | (1) |
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33 | (1) |
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Conclusion of Basic Elements |
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34 | (1) |
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Physical condition of will/will printed on single sheets with writing on one side only |
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Precedent Will Illustrating Basic Components of a Will |
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35 | (3) |
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38 | (2) |
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Application of mutual wills |
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Precedent clause in respect of mutual will |
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The Legal Personal Representative |
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40 | (15) |
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40 | (1) |
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40 | (3) |
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Can a family member be an executor? |
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When can a trust corporation act? |
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Can a minor be an executor? |
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Can a charitable body be an executor? |
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Can there be a professional executor? |
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Can a person under a disability be an executor? |
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How is an Executor Appointed? |
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43 | (1) |
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What is an executor according to tenor? |
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How Many Executors Can Be Appointed? |
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43 | (1) |
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Does an Executor Have to Act? |
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43 | (2) |
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Can an executor be removed? |
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The Role and Duties of an Executor |
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45 | (2) |
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The duties of an executor |
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How to Advise the Executor of a Ward of Court |
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47 | (1) |
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The Powers of an Executor |
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48 | (7) |
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Powers of executor conferred by statute |
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Powers conferred on an executor by will |
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What is the difference between the roles of an executor, a trustee and a guardian? |
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Spouses' and Children's Rights: Will Drafting |
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55 | (40) |
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55 | (1) |
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55 | (1) |
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Death `wholly or partly testate' |
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55 | (1) |
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The Surviving Spouse (Legal Right Share) |
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56 | (20) |
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What exactly is the legal right share? |
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Calculating the legal right share |
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The priority of the legal right share |
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Section 114 (bequest in addition to legal right share) |
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What choices are open to the surviving spouse? |
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Limitation periods--enforceability of legal right share |
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Section 56 -- appropriation in favour of a surviving spouse of the family home |
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How can a spouse cease to be a spouse? |
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What is the effect on the will/administration of the estate of the surviving spouse taking her legal right share? |
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What property will the court consider in relation to a spouse's legal right share or a successful application by a child under s 117? |
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Section 121 of the Succession Act, 1965 |
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76 | (19) |
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To what is a child entitled? |
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What actions can a child take against an estate? |
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The tax status of a child |
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Other legislation relating to children which may affect a will |
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Taking Instructions and Drafting an Attendance on Same and the Execution of a Will |
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95 | (21) |
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The Difference Between Taking Instructions and Drafting an Attendance |
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The distinction between instructions and attendance |
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Precedent Instruction Sheet for a Will |
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96 | (3) |
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Taking the Instruction Sheet Section by Section |
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99 | (3) |
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Taking Instructions in Special Cases |
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102 | (4) |
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Where the client is in imminent danger of death |
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Taking instructions from the elderly or where there is a doubt as to mental capacity |
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Taking instructions regarding an elderly beneficiary |
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106 | (1) |
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Attendances regarding instructions |
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Attendance regarding execution |
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The Solicitor's Duty of Care |
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107 | (9) |
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Introduction to Trusts and Their Legal Context |
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116 | (28) |
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116 | (3) |
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The difference between an inter vivos trust and a will trust |
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Legal requirements for a valid trust: The `three certainties' |
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A Brief Description of Various Types of Trusts |
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119 | (6) |
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Trusts arising by operation of law |
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Trusts created for the benefit not of individuals but for purposes |
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125 | (1) |
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126 | (1) |
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126 | (3) |
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Who can act as a trustee? |
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How is the property held by the trustees? |
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Trustees of a minor/infant trust: ss 57 and 58 of the act |
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129 | (6) |
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Impartiality -- the duty to convert and apportion |
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Powers of a Trustee: Statutory and Non-statutory |
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135 | (4) |
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Does a Trustee Have to Act? Acceptance, Disclaimer, Retirement and Removal |
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139 | (2) |
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Some Distinctions Between Personal Representatives and Trustees |
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141 | (1) |
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142 | (2) |
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Other types of limited interest |
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Powers of beneficiaries `sui juris' |
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The Creation and Use of Trusts in Wills and Their Administration |
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144 | (43) |
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Introduction and Initial Steps |
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144 | (1) |
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Prior to drafting a trust in a will |
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145 | (3) |
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Where to start with a discretionary trust? |
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The ultimate default trust |
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148 | (2) |
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How to incorporate a trust for sale in a basic will |
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The substantive trust to sell (with no power to postpone) |
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The ultimate default provisions |
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150 | (4) |
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The definition of a `settlement' |
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Trusts for sale in the context of the Settled Land Acts |
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Fixed Trusts/Interest in Possession Trusts |
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154 | (2) |
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Providing in a will for a trust for a period certain |
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Distinction between a benefit vested in possession and vested in interest |
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Is it required that the interest vests later? |
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Deemed Disposals by Trustees/Taxation Issues |
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156 | (1) |
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Trust for Individual for Their Lifetime with Remainder Over |
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156 | (1) |
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On the death of the tenant for life |
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Summary of Drafting Section |
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157 | (1) |
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The Administration of Trusts |
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158 | (1) |
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Practical problems surrounding the appointment and retirement of trustees |
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Different Types of Trusts |
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159 | (13) |
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Trusts for minors/s 57 of the Succession Act, 1965 |
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Life interests/limited interests established by will |
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Trusts established by will for beneficiaries with fixed interests |
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Discretionary trusts established by will |
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Breaking Up/Winding Up a Trust |
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172 | (3) |
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An example of beneficiaries winding up a trust |
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Taxation on break-up of settlements |
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175 | (12) |
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Precedent husband's will, leaving everything to wife with substantial provision for children |
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Precedent will leaving estate to trustees on trust for sale with provisions to provide income to wife for life with the remainder over to children |
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Precedent discretionary will trust |
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Introduction to Administration of Estates |
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187 | (52) |
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Introduction and Overview |
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187 | (4) |
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Steps in administering an estate (pre-grant) |
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Overview of chapters 9--13 |
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Further steps in administering an estate (post-grant) |
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General notes on administration of estates |
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Stages of the administration of an estate |
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Immediate Tasks of the Practitioner on Notification |
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191 | (2) |
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Where apparently there is no will |
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Burial directions or other urgent matters |
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Is it Necessary for the Solicitor to Extract a Grant? |
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193 | (1) |
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Where a Grant is Always Necessary |
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194 | (2) |
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Where a grant may be necessary even though there are no assets |
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The estate of a ward of court |
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Distinction between personal representatives and trustees |
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Preparing for the Initial Interview with the Personal Representative |
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196 | (1) |
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Introduction and issues that may arise |
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Instruction and Progress Sheet |
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197 | (20) |
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General notes on completing the instruction sheet |
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Executors/administrators (page two) |
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Irish assets (page three) |
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Foreign assets and debts of the estate (page four) |
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If the deceased was separated/divorced |
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The First Meeting with the Personal Representative |
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217 | (2) |
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Initial Steps to Be Taken After the First Meeting with the Personal Representative |
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219 | (9) |
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Precedent letter giving authority to act (to comply with solicitors regulations) |
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Opening an executor's/administrator's account |
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Letters to establish values of estate |
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228 | (9) |
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Part 1: General information |
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Part 2: Sworn declaration |
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Part 3: Property in the state forming part of the estate |
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Part 4: Property outside the state |
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Part 6: Schedule of lands and buildings |
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Part 7: Summary of benefits |
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Delivery and return of the inland revenue affidavit |
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Dealing with the File between Lodging of the Inland Revenue Affidavit and Receipt of the Grant of Representation |
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237 | (2) |
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Introduction to Probate Practice |
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239 | (48) |
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Probate Practice Background |
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239 | (2) |
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Contentious and non-contentious probate applications |
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Grants of representation generally |
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Types of grants of representation |
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Extracting a Grant of Probate |
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241 | (4) |
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When does a grant of probate arise? |
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Who May Apply for a Grant of Probate? |
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245 | (1) |
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Number of providing executors |
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Documents/Proofs Required for Grant of Probate |
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246 | (17) |
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Original will (and codicil if applicable) |
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Certified copy will/engrossment of will (and codicil if any) |
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Copy of the oath of executor or notice of application |
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Probate tax clearance certificate |
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Affidavit of attesting witness or witnesses |
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Affidavit of due execution |
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Affidavit of plight and condition |
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Affidavit of mental or testamentary capacity |
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Charitable bequest form Fees |
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263 | (1) |
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263 | (1) |
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Executor according to tenor |
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Executor under disability: Grant to a committee of a ward of court |
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Other Problems with Wills and Possible Solutions |
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264 | (2) |
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Will in pre-printed standard will form |
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Application to prove a will in terms of a copy |
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Document referred to in a will/incorporation by reference |
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Precedent Probate Application -- John Smyth Deceased |
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266 | (18) |
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Will dated 10 August, 1991 |
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Instruction and progress sheet |
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Grant of probate incorporating probate engrossment |
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Where a Trust Corporation Acts as Executor |
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284 | (1) |
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Oath for executor when executor is a trust corporation (in this case AIB) |
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Resolution of bank board referred to in affidavit |
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285 | (2) |
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Extracting a Grant of Administration with Will Annexed |
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287 | (35) |
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Notes on Grant of Administration with Will Annexed |
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287 | (1) |
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Entitlement to Extract the Grant |
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287 | (2) |
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Who is entitled to extract the grant? |
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What Proofs/Documents are Required to Apply for the Grant? |
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289 | (7) |
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Oath for administrator with the will annexed |
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Affidavit of market value or certificate of market value |
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Letters of Administration with Will Annexed Grants Compared with Other Grants of Representation |
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296 | (1) |
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Grant of letters of administration intestate |
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297 | (1) |
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Precedent Application for a Grant of Letters of Administration with Will Annexed |
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297 | (14) |
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Inland revenue affidavit CA24 (schedule of assets) |
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Oath for administrator with the will |
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Certificate of market value |
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Form to be completed for the commissioners of charitable donations and bequests for Ireland |
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Simultaneous Deaths (Commorientes) -- s 5 of the Succession Act |
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311 | (2) |
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Exception to Doctrine of Lapse - s 98 of the Succession Act |
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313 | (2) |
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Three conditions must be satisfied for s 98 to apply |
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Distinction between s 98 and s 67 (per stirpes) |
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Example of operation of s 98 |
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Seat Office Checklist -- Grant of Administration with Will Annexed |
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315 | (1) |
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Precedent Oath for Administrator and Administration Bond for Deaths Prior to 1967 and 1969 |
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316 | (6) |
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Introduction and background |
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Oath for administrator with the will for deaths before 1 June, 1959 |
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Administration with will annexed bond for deaths between 1 June, 1959 |
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Oath for administrator with the will for deaths between 1 June, 1959 and 31 December, 1966 |
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Administration bond with will annexed and for deaths between 1 June, 1959 and 31 December, 1966 |
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Extracting a Grant of Administration Intestate |
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322 | (50) |
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322 | (1) |
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Notes on Establishing Entitlements to Grants |
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322 | (2) |
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The interest is determined at date of death |
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The grant follows the interest |
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Documents Required When Applying for a Grant of Letters of Administration Intestate |
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324 | (4) |
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Oath of administrator intestate |
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Copy of the oath of administrator intestate |
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Affidavit of current market value of land |
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Order of Entitlement on Intestacy After 1 January, 1967 |
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328 | (3) |
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Revocation of grant of administration intestate |
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Per Stirpes Rule (ie By the Roots) |
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331 | (4) |
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Issue of a deceased are inheriting (s 67 (2)--(4)) |
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Where siblings of a deceased are inheriting (S 69(1)) |
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Relatives of Half-Blood and Step Relatives (No Blood Relationship) |
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335 | (1) |
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Ascertainment of Next-of-Kin |
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336 | (4) |
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Chart of intestate succession for deaths on or after 1 January, 1967 |
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Chart of degrees of blood relationship |
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Guide to Rules of Intestacy for Death Prior to 1 January, 1967 (Old Rules) |
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340 | (8) |
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Introduction and background |
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Entitlements on intestacy prior to 1 January, 1967 |
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Oath for administrator intestate for deaths before 1 June, 1959 |
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Administration intestate bond for deaths prior to 1 June, 1959 |
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Oath for administrator intestate for deaths between 1 June, 1959 and 31 December, 1966 |
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Administration intestate bond for deaths between 1 June, 1959 and 31 December, 1966 |
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Precedent Administration Intestate Application Documents |
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348 | (13) |
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Letters of administration |
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Specimen Intestacy Titles |
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361 | (1) |
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Seat Office Checklist -- Grant of Administration Intestate |
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362 | (1) |
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363 | (4) |
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Effect of disclaimers prior to 5 May, 1997 |
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Effect of disclaimers after 5 May, 1997 |
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Direct lineal ancestor (eg father, grandfather etc) disclaiming |
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General operation of s 72A |
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Sample deed of disclaimer |
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Specimen titles when disclaiming on intestacy |
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Status of Children Born Outside Marriage and Their Property Rights |
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367 | (5) |
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Historical and legal background |
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Status of Children Act, 1987: Commencement date and effects |
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Deaths intestate before 14 June, 1988 |
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Deaths intestate after 14 June, 1988 |
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Remoter relationships than parent-child where the applicant is claiming through a person whose parents have not married each other, eg `non-marital nephew' to uncle |
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Second and Subsequent Grants (De Bonis Non Grants) |
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372 | (21) |
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Background and Introduction to De Bonis Non Grants |
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372 | (1) |
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Distinction between de bonis non grants and revocation of grant |
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De bonis non grants and deeds of assent |
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How to Determine the Appropriate De Bonis Non Grant |
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373 | (1) |
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Who is entitled to apply for the DBN grant? |
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Where to apply for a DBN grant |
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Documents Required to Extract a De Bonis Non Grant |
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374 | (1) |
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Additional documents required for a de bonis non grant |
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Proofs Required for Both Types of De Bonis Non Grants |
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375 | (2) |
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Grants of letters of administration with will annexed de bonis non |
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The Administration Bond De Bonis Non |
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377 | (1) |
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Administration with will annexed bond (for deaths pre-1 June, 1959 |
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Administration with will annexed bond (for deaths between 1 June, 1959 and 31 December, 1966 |
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Administration bond (for deaths post-1 January, 1967) |
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Documents Never Required for a Will Annexed De Bonis Non Grant |
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378 | (1) |
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Grants of Letters of Administration Intestate De Bonis Non |
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378 | (1) |
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Sample titles administration intestate de bonis non (deaths on or after 1 January, 1967) |
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379 | (1) |
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When is a De Bonis Non Grant Not Required? |
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379 | (1) |
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380 | (1) |
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Other Second or Subsequent Grants |
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381 | (1) |
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381 | (1) |
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381 | (1) |
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Problems regarding assents |
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Precedent Application Documents for Grant of Letters of Administration Intestate De Bonis Non |
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382 | (11) |
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Revenue form A3(C) and CA6 |
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Primary grant of administration intestate |
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Oath for administrator de bonis non |
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Administration bond de bonis non |
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Affidavit of market value |
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Precedent de bonis non grant |
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Non-Contentious Applications (Either to the Probate Officer or to the Court) |
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393 | (42) |
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Practice and Procedure in Respect of Non-Contentious Matters Coming Before the Probate Officer |
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393 | (9) |
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Powers of the Probate Officer |
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Orders of the Probate Officer pursuant to O 79 of the Rules of the Superior Courts, 1986 |
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Requirements of Probate Office in respect of applications under O 79 of Rules of the Superior Courts |
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Revocation and Amendment of Grants |
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402 | (2) |
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Revoking and cancelling a grant |
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Precedent application to lead to revocation of a grant |
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Practice and Procedure in Respect of Non-Contentious Probate Matters Coming Before the High Court |
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404 | (8) |
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Where such applications are necessary |
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Section 27(4) of the Succession Act, 1965 |
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Application to prove a will in terms of a copy |
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Rival applications for a grant of administration |
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Leave to presume death on information and belief for the purpose of extracting a grant |
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To admit a will to proof by presumption as to due execution |
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Simultaneous deaths -- s 5 of the Succession Act, 1965 |
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Applications for a grant limited for a particular purpose or to a particular part of the estate |
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412 | (1) |
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Who may lodge a caveat and what is its effect? |
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How may a caveat be lodged? |
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How long does a caveat last? |
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413 | (2) |
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What is a warning and when is it appropriate to use it? |
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What is the effect of the warning? |
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415 | (2) |
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What is the value of a citation? |
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Example of a citation in operation |
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417 | (1) |
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Procedure for obtaining twenty-one-day order from Probate Officer -- O 79, r 5(3) |
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Precedent Testamentary Pleadings |
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418 | (7) |
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Citation to introduce and deposit a will, and to accept or refuse probate thereof |
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425 | (10) |
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Appendix A: Preparation of wills on word processors |
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Appendix C: Probate Office fees |
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Appendix D: Structure of the Probate Office |
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Initial Steps After the Grant has Issued |
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435 | (18) |
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Introduction and Overview |
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435 | (1) |
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Re-read the file (especially the will) |
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Further Meeting with the Personal Representative |
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436 | (2) |
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Surviving spouse -- Part IX of the Succession Act, 1965 |
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Collection of assets of the estate |
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Collection of Assets of the Estate |
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438 | (7) |
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Building society/credit union |
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Post office savings account, savings certificates and bonds |
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Stocks and shares (transfer and/or sale) |
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Social welfare old age pensions |
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Payment of Liabilities (First Schedule, Parts I and II, Succession Act, 1965) |
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445 | (4) |
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Steps to Take Prior to Distribution of Assets |
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449 | (4) |
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Protection of representatives |
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Section 49 notice to creditors |
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Protection of purchasers and creditors |
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Spouses' and Children's Rights: Personal Representatives' Duties |
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453 | (8) |
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453 | (1) |
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Spouses' Legal Right Share |
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453 | (4) |
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Right to elect between legal right share and bequest under will where the testator died wholly testate |
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Right to elect between legal right share and bequest under will where the testator died partially intestate |
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Distinction between the legal right share and the right to elect |
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Right of Spouse to Appropriate Dwelling House and Contents |
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457 | (1) |
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Effect of s 56 on disponee of family home |
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458 | (3) |
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Section 63: Advancements to children to be brought into account |
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Non-marital children and the Status of Children Act, 1987 |
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Benefits and Beneficiaries |
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461 | (18) |
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461 | (1) |
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461 | (4) |
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Presumption of advancement/resulting trust |
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Distinction between real/leasehold property and joint deposits |
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Taxation consequences of joint property |
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465 | (2) |
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Non-statutory nominations |
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Nominations and the spouse's legal right share |
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Section 72 Policies (Formerly Known as `s 60 Policies') |
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467 | (1) |
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468 | (4) |
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Valuation for appropriation purposes |
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472 | (5) |
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Beneficiary under disability |
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Communication with Beneficiaries |
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477 | (1) |
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Summary of Guidelines for Dealing with Beneficiaries in Any Estate |
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477 | (2) |
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Obligations, Duties and Claims on the Estate |
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479 | (9) |
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479 | (1) |
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`Condition' undertakings or letters on which a third party might rely |
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Discharge from undertaking |
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480 | (2) |
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Exceptions to the `executor's year' |
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Social Welfare (Consolidation) Act, 1993 (Liability of Personal Representative) |
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482 | (1) |
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Obligation on personal representative to inform minister |
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Personal liability of personal representative |
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Statutory Notice to Creditors (s 49 Notice) |
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483 | (1) |
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Precedent statutory notice to creditors |
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484 | (2) |
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Precedent letter to residuary legatee/intestate successor |
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Taxation Obligations and Certificates of Discharge |
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486 | (2) |
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Distributing the Estate and Vesting of Property |
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488 | (11) |
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488 | (3) |
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Where the personal representative is also the beneficiary |
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Assent subject to a charge |
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Deeds of Family Arrangement |
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491 | (6) |
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Introduction and overview |
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A deed of family arrangement |
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Precedent deed of family arrangement |
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Transactions between spouses |
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All voluntary dispositions |
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497 | (2) |
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What is the effect of a disclaimer? |
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What is the effect of disclaimers on the right to extract a grant? |
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499 | (16) |
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Introduction and Overview |
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499 | (1) |
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Payment of Legacies: Devises, Bequests, Residue |
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499 | (1) |
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Section 47 (charges on property) |
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500 | (1) |
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Exceptions to the doctrine of lapse |
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Partial Intestacy: Where the Residue (or Part of the Residue) Lapses |
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501 | (1) |
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Read the residuary clause carefully |
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Dealing with a partial intestacy |
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502 | (1) |
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503 | (5) |
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Purpose and type of accounts |
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Precedent set of administration accounts |
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508 | (4) |
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Claims by beneficiaries against the estate |
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Actions by the estate to recover land belonging to the deceased |
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Time Limits and Periods of Notice |
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512 | (3) |
| Bibliography |
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515 | (4) |
| Index |
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519 | |
