Professional Documents
Culture Documents
RULES
The Judiciary
State of Hawai#i
HAWAI #I PROBATE RULES
Table of Contents
I. SCOPE OF RULES
Rule 6. STIPULATIONS
(a) Presentation
(b) Format for Court Approval
(Release: 06/06) i
Table of Contents Hawai#i Probate Rules
IV. HEARINGS
ii (Release: 06/06)
Hawai#i Probate Rules Table of Contents
V. CONTESTED MATTERS
VII. ACCOUNTINGS
IX. ORDERS
X. MODEL FORMS
iv (Release: 06/06)
Hawai#i Probate Rules Table of Contents
(Release: 06/06) v
Table of Contents Hawai#i Probate Rules
I. COMMENCEMENT
II. NOTICE
IV. INVENTORIES
V. CREDITORS' CLAIMS
vi (Release: 06/06)
Hawai#i Probate Rules Table of Contents
X. FLAG SHEETS
XII. MISCELLANEOUS
I. COMMENCEMENT OF PROCEEDING
II. HEARINGS
III. NOTICE
(Release: 06/06) ix
Table of Contents Hawai#i Probate Rules
V. KOKUA KANAWAI
VII. ACCOUNTINGS
x (Release: 06/06)
Hawai#i Probate Rules Table of Contents
VIII. FEES
I. GENERAL PROVISIONS
(Release: 06/06) xi
Table of Contents Hawai#i Probate Rules
I. COMMENCEMENT OF ACTION
I. COMMENCEMENT OF ACTION
II. NOTICE
III. EVIDENCE
IV. ORDER
Rule 2. ONE FORM OF ACTION. of Civil Procedure shall apply with respect to the
There shall be one form of action for any case to referred petition.
which these rules apply, which shall be known as a
"proceeding." COMMENTARY:
A pleading is a statement by a party to a
COMMENTARY: proceeding or a court-appointed official
Regular civil cases and family court which sets forth or responds to allegations,
cases are referred to as "civil actions." The claims, denials or defenses, and may be
Uniform Probate Code generally refers to supplemented or supported by affidavit or
all actions thereunder as "proceedings." The memorandum. To simplify probate court
use of the term "proceeding" would maintain proceedings, to distinguish them from civil
consistency and help eliminate confusion as actions, and to address the confusion that
to proceedings under these rules as opposed currently exists with respect to the proper
to proceedings controlled by other form of pleadings in trust and other
procedural rules. proceedings, all requests for court relief or
action shall be initiated by a petition.
Rule 2.1. MEDIATION RULES. Motions as a form would be prohibited,
The Probate Court may direct parties to except where a contested matter has been
participate in mediation pursuant to the Mediation assigned to the regular civil calendar
Rules for Probate, Trust, Conservatorship, and pursuant to Rule 20, during which
Guardianship (Mediation Rules), attached to these assignment the Hawai#i Rules of Civil
rules as Exhibit A and effective October 1, 1996, and Procedure would apply. The committee
as subsequently amended. considered combining the concepts of an
(Added August 23, 1996, effective October 1, "objection" and a "response," but felt that
1996; further amended April 28, 2006, effective July an objection is clearly and unequivocally in
1, 2006.) opposition to a pleading, while a response
may not necessarily oppose all relief
requested in a petition, and could raise
II. PLEADINGS AND PETITIONS additional issues related to the petition. A
response could be a pleading referring to
Rule 3. PLEADINGS ALLOWED; FORM the initial petition, or could be in reference
OF PLEADINGS. to an objection or another party's response
(a) Form. There shall be a petition and a or a master’s, guardian ad litem’s, or Kokua
response or objection. For purposes of these rules, Kanawai’s report. A response should state
an application in an informal proceeding is a petition, in its title clearly to what other pleading it is
unless the context of the rule indicates otherwise. responding. This rule does not abolish other
Persons may file a joinder, response, or objection to types of procedural documents, such as
a petition or to a master’s, guardian ad litem’s, or joinders, receipts, waivers, and the like,
Kokua Kanawai’s report. Persons may file a which do not contain substantive statements
memorandum in support of their pleadings. Every of position.
petition, except one entitled to be heard ex parte, Orders setting time and place of hearing
shall be accompanied by an order setting date, time, must contain a sentence notifying interested
and place of hearing, which shall include a statement parties that they have 30 days to file a
notifying interested persons of the 30-day limit for response or objection to the petition.
responding to the petition as provided by Rule 10(c).
No other pleading shall be allowed, provided that if
a contested matter is referred to the regular civil
calendar pursuant to Rule 20, then the Hawai#i Rules
(b) Filings in Response to Petition or construed liberally, and may be deemed amended to
Master’s, Guardian ad Litem’s, or Kokua conform to the evidence presented.
Kanawai’s Report. Opposition to any or all of the
relief prayed for in a petition or to a master’s, COMMENTARY:
guardian ad litem’s, or Kokua Kanawai’s report shall This rule outlines what must be
be in the form of a written objection. Opposition to contained in a petition, including specific
an application in an informal proceeding shall also be statutory citations. Petitioners should give
made by filing a petition for formal proceedings. sufficient facts in the petition to clearly
Interested persons may also file a written response to support the relief requested, including all
a petition or to a master’s, guardian ad litem’s, or specific information required by any
Kokua Kanawai’s report if they do not necessarily applicable statute. Given the equitable
object to a petition or to a master’s, guardian ad nature of the proceeding, alternative and
litem’s, or Kokua Kanawai’s report but desire to multiple prayers may be made, and the
state on the record their position, or if they desire to petition may be deemed amended to reflect
raise additional issues that are related to the petition the evidence presented to the court. This rule
or to the master’s, guardian ad litem’s, or Kokua is in keeping with the informal nature of the
Kanawai’s report. proceedings and the desire to dispose of
matters quickly without delay caused by
COMMENTARY: failure to follow technical rules of pleading.
In informal proceedings, a person who
objects to an application must file a formal (d) Documents Sealed Upon Filing. The
petition for determination of intestacy or following documents shall be sealed upon filing:
probate of a will in order to have the (1) birth certificate;
objection heard by the court. Such a petition (2) marriage certificate;
can be filed either before or after the letters (3) death certificate;
are issued (where, for example, no advance (4) tax return;
notice is given). While HRS § 560:3-302(b) (5) Kokua Kanawai's report;
allows the registrar to issue letters if more (6) court ordered professional evaluation; and
than 14 days have elapsed since service of (7) responses and objections to a Kokua
the application, it may be difficult for an Kanawai's report or professional evaluation.
objecting party to file a formal petition The foregoing documents shall remain sealed
within that time frame. This rule, therefore, unless otherwise ordered by the court, or as provided
allows the party to file a written objection in HRS §560:5-307 and -407.
with the court to at least put the registrar on
notice of such objection, but a formal COMMENTARY:
petition must also be filed in order for the This rule is intended to protect the
court to consider the issue. respondent's privacy and to minimize the
risk of identity theft. Because of the
(c) Content of Petitions. A petition shall sensitive information included in birth,
contain (1) a reference to the specific statute or rule, death, and marriage certificates, and in tax
if any are applicable, under which the petition is returns, those documents must be sealed
brought, (2) a concise and plain statement of the facts upon filing. The Kokua Kanawai report and
giving rise to the need for the relief prayed for, (3) all any evaluations by court-ordered
specific facts, allegations, and representations, if any, professionals are required to be sealed upon
required by any statute under which the petition is filing pursuant to Haw. Rev. Stat. § 560:5-
brought, and (4) a prayer for the findings, relief, or 306 and 5-406(f). Because the reports are
order sought. Prayers in the alternative or of several sealed, responses and objections that refer
different types may be presented. Petitions shall be to them are also sealed.
Use of any other publication shall provide happening, when, and where, and who to
adequate notice only if approved in advance contact for additional information. The
by the court in the order for notice. general guideline is to keep it simple. Use of
smaller fonts in the published notice might
(b) Proof of Publication. Whenever the help to cut costs.
publication in a newspaper of any summons, process,
notice, or order is required, evidence of such Rule 10. COMPUTATION OF TIME.
publication shall be given by the affidavit of the (a) Computation. In computing any period of
editor, publisher, manager, foreman, clerk, or printer time prescribed or allowed by these rules, by order of
of such newspaper, to which affidavit is attached a court, or by any applicable statute, the day of the act,
copy of such summons, process, notice or order, and event, or default after which the designated period of
which affidavit also specifies the dates and times time begins to run is not to be included. The last day
when and the newspaper in which the publication of the period so computed is to be included, unless it
was made. The party required to prove service shall is a Saturday, Sunday, or a legal holiday, in which
file or be responsible for the filing of the affidavit event the period runs until the end of the next day
with the clerk before the time fixed for hearing. which is neither a Saturday, a Sunday, nor a legal
holiday. When the period of time prescribed or
COMMENTARY: allowed is less than seven days, intermediate
This formalizes the current practice. Saturdays, Sundays, and holidays shall be excluded
in the computation. As used in this rule, "holiday"
(c) Content and Brevity of Notice. A person includes any day designated as such pursuant to
who prepares a notice to be published shall include Section 8-1 of the Hawai#i Revised Statutes.
in the notice the title of the case, case number, court (b) Enlargement. When by these rules or by a
involved, a brief description of the matter to be notice given thereunder or by order of court an act is
heard, the date, time, and location of the hearing, and required or allowed to be done at or within a
the name, address, and telephone number of either specified time, the court for cause shown may at any
the party or the party's attorney. Any additional time in its discretion (1) with or without petition or
information shall be restricted to that required by notice, order the period enlarged if request therefor
statute or rule or essential to provide notice of the is made before the expiration of the period originally
reason for the publication. prescribed or as extended by a previous order or (2)
upon petition made after the expiration of the
COMMENTARY: specified period, permit the act to be done where the
This rule is intended to keep costs of failure to act was the result of excusable neglect; but
administration down by providing guidelines it may not extend the time for taking any action
for the content of published notice. Only the under Rule 4 of the Hawai#i Rules of Appellate
essential information necessary to provide Procedure, except to the extent and under the
adequate notice is to be included in the conditions stated in that rule.
publication; law firm names, attorney
license numbers, names of multiple COMMENTARY:
attorneys, fax numbers, and the like should These rules provide clarification on the
be eliminated. Capitalized words should be measurement of time and conform probate
avoided, as they take up more space and court practice to common court rules.
result in higher publication costs. Phrases
such as "the Honorable John Doe, Judge of (c) Time to File Pleadings or Reports.
the above entitled court" and "on Monday (1) OBJECTION OR RESPONSE . A party objecting
the 12th day of October, 1992" should be or responding to a petition must file the objection or
dropped in favor of "Judge John Doe" and response with the court and serve it on interested
"Oct. 12, 1992." The idea is to give the persons within 30 days after service of the petition
public sufficient information to know what is and notice of hearing, or in the case of an informal
application, within 14 days after service of any (A) Objection or Response to Objection or
application under HRS § 560:3-302(b), except when Response to Master's Report. Any party objecting or
a different time is prescribed by statute or court responding to an objection or response to a master's
order, provided that in matters for which the court report shall file the objection or response and serve
has appointed a master or Kokua Kanawai, the it on all counsel who have appeared in the
following provisions apply: proceeding within 20 days after the date the master's
(A) Master's Report; Objection or Response to report is filed.
Master's Report. Unless otherwise ordered by the (B) Objection or Response to Objection or
court, the court-appointed master shall file a report Response to Kokua Kanawai's Report. Any party
with the court and serve a copy of the report on all objecting or responding to an objection or response
counsel who have appeared in the proceeding within to a Kokua Kanawai's report shall file an objection or
30 days after the date the master was appointed or response and shall serve it only upon those persons
within 30 days after the date responses to the petition authorized to receive such report pursuant to HRS §
are due, whichever is later. Any party objecting or 560:5-307 and/or § 560:5-407 or pursuant to an order
responding to the master's report shall file an of the court, within 20 days after the date the Kokua
objection or response to reject or confirm, in whole Kanawai's report is filed.
or in part, the report and shall serve the objection or (3) SERVICE ON WHOM ; DELIVERY OF COPY TO
response on all counsel who have appeared in the JUDGE 'S CHAMBERS . Any party filing an objection or
proceeding within 10 days after the date the master's response (including an objection or response to an
report is filed. objection or response) shall also serve it on all other
(B) Kokua Kanawai's Report; Objection or interested persons who have not filed a waiver of
Response to Kokua Kanawai's Report. Unless notice, even though service may not be completed
otherwise ordered by the court, a Kokua Kanawai before the time set for hearing, and shall deliver a
appointed pursuant to HRS § 560:5-305 and/or § copy of the file-marked objection or response to the
560:5-406 shall file a report with the court and serve presiding judge's chambers; provided that in matters
a copy of the report only upon those persons for which the court has appointed a Kokua Kanawai
authorized to receive such report pursuant to HRS § pursuant to HRS § 560:5-305 and/or § 560:5-406, the
560:5-307 and/or § 560:5-407 or pursuant to an order objection or response shall be served only upon those
of the court, within 30 days after the date the Kokua persons authorized to receive such report pursuant to
Kanawai was appointed or within 30 days after the HRS § 560:5-307 and/or § 560:5-407 or pursuant to
date responses to the petition are due, whichever is an order of the court.
later. Any party objecting or responding to the (4) GUARDIAN AD LITEM . A guardian ad litem
Kokua Kanawai's report shall file an objection or appointed by the court in any matter shall comply
response to reject or confirm, in whole or in part, the with the same response dates as any other party,
report and shall serve the objection or response only unless otherwise ordered by the court.
upon those persons authorized to receive such report (5) SHORTENING OR EXPANDIN G TI M E. The
pursuant to HRS § 560:5-307 and/or § 560:5-407 or court for good cause may shorten or expand the time
pursuant to an order of the court, within 10 days after requirements of these rules to effectuate the efficient
the date the Kokua Kanawai's report is filed. administration of estates.
(2) OBJECTION OR RESPONSE TO OBJECTION OR
RESPONSE . Any party objecting or responding to an COMMENTARY:
objection or response shall file an objection or To prevent surprises at hearings, to
response and serve it on all counsel who have improve the efficiency of the judicial
appeared in the proceeding within 10 days after the process, and to fairly put parties on notice of
responses or objections to the petition are filed, or 72 the position of all parties prior to the
hours prior to the time set for the hearing as hearing, objections and responses must be
originally set, whichever is earlier, provided that in filed within 30 days of service of the petition.
matters for which the court has appointed a master or This expands the 20-day answer requirement
Kokua Kanawai, the following provisions apply: of HRCP 12(a); the longer time period is
COMMENTARY:
This rule conforms the timing
requirements with respect to mailings to
other court rules.
(Amended November 12, 1997, effective
December 15, 1997; further amended June 25, 2003,
effective July 1, 2003; further amended May 17,
2004, effective July 1, 2004; further amended April
28, 2006, effective July 1, 2006.)
adult and guardianship of the property for summary with or without a final certification.
the same adult), then the court may permit (b) Lack of Record. A written statement that
consolidation of guardianship and after diligent search no record or entry of a specified
conservatorship proceedings concerning the tenor is found to exist in the records designated by
same adult person in probate court. the statement, authenticated as provided in
(Commentary amended February 16, 2005, subdivision (a) (1) of this rule in the case of a
effective nunc pro tunc January 1, 2005.) domestic record, or complying with the requirements
of subdivision (a) (2) of this rule for a summary in
Rule 15. PROOF OF OFFICIAL RECORD. the case of a foreign record, is admissible as
(a) Authentication. evidence that the records contain no such record or
(1) DOM ESTIC . An official record kept within the entry.
United States or any state, district, commonwealth, (c) Other Proof. This rule does not prevent the
territory, or insular possession thereof, or within the proof of official records or of entry or lack of entry
Panama Canal Zone, or the Trust Territory of the therein by any other method authorized by law.
Pacific Islands, or an entry therein, when admissible
for any purpose, may be evidenced by an official COMMENTARY:
publication thereof or by a copy attested by the These rules clarify the proof needed
officer having the legal custody of the record, or by when dealing with records from outside the
the officer's deputy, and accompanied by a certificate state and is particularly important in
that such officer has the custody. The certificate may proving foreign wills and trusts and vital
be made by a judge of a court of record of the district statistics. This clarifies that a certified copy
or political subdivision in which the record is kept, of a domestic record is sufficient, while an
authenticated by the seal of the court, or may be exemplified copy is only necessary when
made by any public officer having a seal of office dealing with foreign documents.
and having official duties in the district or political
subdivision in which the record is kept, authenticated (d) Non-English Documents. A party
by the seal of that person's office. presenting a non-English document to the court shall
(2) FOREIGN . A foreign official record, or an attach to it (1) an English translation of the document
entry therein, when admissible for any purpose, may and (2) an affidavit of the individual who prepared
be evidenced by an official publication thereof; or a the translation certifying as to the accuracy of the
copy thereof, attested by a person authorized to make translation and the qualifications of the individual.
the attestation, and accompanied by a final
certification as to the genuineness of the signature COMMENTARY:
and official position (A) of the attesting person, or This rule establishes the method by
(B) of any foreign official whose certificate of which a foreign-language document (such as
genuineness of signature and official position relates a will or death certificate) may be presented
to the attestation or is in a chain of certificates of to the court. All such documents must be
genuineness of signature and official position accompanied by an English translation and
relating to the attestation. A final certification may an affidavit of the person preparing the
be made by a secretary of embassy or legation, translation. This rule allows parties to select
consul general, consul, vice consul, or consular agent their own interpreters for document
of the United States, or a diplomatic or consular translation, as long as such person can
official of the foreign country assigned or accredited establish competency in the affidavit.
to the United States. If reasonable opportunity has
been given to all parties to investigate the
authenticity and accuracy of the documents, the court
may, for good cause shown, (A) admit an attested
copy without final certification or (B) permit the
foreign official record to be evidenced by an attested
(e) Interpreters. The court may appoint an notifying the court of the withdrawal, but in any
interpreter of its own selection or recommended by event no less than 72 hours prior to the scheduled
a party and may fix the interpreter's reasonable hearing date, the party shall file a "Withdrawal of
compensation. The court may direct one or more of Petition" or "Withdrawal of Objection" clearly
the parties to pay the compensation or may tax the setting forth (1) the title of the pleading being
compensation as costs. withdrawn, (2) the time and date of the hearing,
(3) the name of the presiding judge who was
COMMENTARY: scheduled to hear the matter, (4) in the case of a
There is currently uncertainty in probate withdrawal of a petition, that all court-appointed
practice as to how to get documents officials have been paid in full, and (5) the party's
translated. This will allow the court to attorney's signature. File-marked copies of the
approve of an interpreter that the parties Withdrawal shall be served on opposing counsel as
can then rely on. soon as available. The court in its discretion may
impose sanctions on a withdrawing party who fails to
Rule 16. DETERMINATION OF FOREIGN comply with this rule.
LAW. (b) Effect of Withdrawal on Hearing. When a
A person who intends to raise an issue petition is withdrawn, the hearing on the petition
concerning the law of another state or a foreign shall be stricken, except where the withdrawal is the
country shall give notice in the pleadings or other result of a settlement or compromise by the parties.
reasonable written notice. The court, in determining When an objection is withdrawn, the hearing shall
the law of another state or country, may consider any continue as scheduled to consider the relief requested
relevant material or source, including testimony and in the petition. Where the withdrawal of a pleading
affidavits of law practitioners in that jurisdiction, is the result of a settlement or compromise, the
whether or not submitted by a party or admissible hearing shall be conducted as scheduled and the
under the Hawai#i Rules of Evidence, HRS Chapter parties shall describe the settlement on the record to
626. The court's determination shall be treated as a the extent required by the court.
ruling on a question of law.
COMMENTARY:
COMMENTARY: This clarifies the procedures required to
This rule provides a means for the court strike a hearing date. A settled dispute shall
to obtain information concerning and to rule be entered into the record to prevent later
on the applicable law of another misunderstanding. This rule does not apply
jurisdiction. This is of primary importance to contested matters assigned to the civil
in the probate of wills, where the validity of trials calendar.
execution and form of the will is dependent
upon the law of the jurisdiction where the
will was signed. In such an instance, an
affidavit of an experienced attorney in that
other jurisdiction could be relied upon by
the court.
COMMENTARY: COMMENTARY:
By their terms (Rule 1101), the Hawai#i This rule divides contested matters into
Rules of Evidence apply to probate, trust, two classes: those that the probate court will
and guardianship and conservatorship resolve and those that the court will refer to
matters. However, the court, in exercising its the civil trials calendar. It is anticipated that
equitable powers, has generally granted the court will assign to civil trials the more
wide latitude in the admission of evidence, complex and time consuming cases,
without tying itself up with technical although the court may retain such a case if
readings of the rules. This rule it involves technical issues that are within
acknowledges the effect of the Rules of the experience and expertise of the probate
Evidence, while encouraging broad and court (and therefore involve less time and
liberal application by the court. The effort to educate a trial judge). By requiring
committee felt that this clarification of the a written order of assignment, which would
court's discretion was necessary. ideally be a preprinted form, a clear record
(Commentary amended April 28, 2006, effective is created, and the court then has the
July 1, 2006.) opportunity to decide what procedures will
be used if the contested matter is retained.
V. CONTESTED MATTERS (See Rule (d) below.)
Rule 19. DEFINITION. (b) Guideline for Assignment. The court may
A contested matter is any one in which an use as a guideline on whether to assign a contested
objection has been filed. The contested matter shall matter to the civil trials calendar the expected length
be limited to facts and issues in dispute, and shall not of the hearing and whether it will take more than
affect other issues or pleadings before the court with one-half day. The court may also assign other matters
respect to the same proceeding that are not in to the civil trials calendar, with or without the
dispute, provided that no party is prejudiced thereby. stipulation of the parties, and the court, at the request
of all parties, may retain on the probate calendar a
COMMENTARY: contested matter that would otherwise be assigned to
This rule sets the stage for the rules that the civil trials calendar, if the court determines the
follow. Of importance is the recognition that matter can be handled more efficiently and
a contested issue can be separated from the effectively. When the court assigns a contested
normal progress of the estate, matter to either calendar, the court may set a status
conservatorship, guardianship, or trust, and conference date, which the court clerk will note in
dealt with separately, while normal the order assigning the contested matter, or in a
uncontested matters may continue to be separate status conference order.
addressed in normal course while the
contested issue is resolved. In this way, a COMMENTARY:
proceeding is not completely put on hold This rule provides standards for
because of a dispute about one issue. assigning contested matters to either the
(Commentary amended April 28, 2006, effective probate calendar or the civil trials calendar,
July 1, 2006.) with a great deal of flexibility built in. The
flexibility is essential, considering the great
difference in procedures available and the the contested matter. It is anticipated that
likelihood that a civil trial would take many most, if not all, of the rules regarding
months to get scheduled. A status conference discovery, summary judgment, trial
date may be set at the same time the testimony, and pretrial practices will be
assignment is made, to prevent further delay adopted. Currently, contested matters in
in hearing the matter. probate do not clearly give rise to the right
to discovery, and it is rare for the court to
(c) Effect of Assignment to Civil Trials specifically address the issue. Other issues
Calendar. The Hawai#i Rules of Civil Procedure and not in dispute, and regular settlement or
the Rules of the Circuit Courts will apply to all administration of the probate, guardianship,
contested matters assigned to the civil trials calendar. or trust estate, shall continue to the extent
However, no right to jury trial shall be created by possible without regard to the contested
assignment to the civil trials calendar where such a matter.
right does not exist in the underlying proceeding.
When a matter is assigned to the civil trials calendar, (e) Effect on Underlying Matter. The
then for all procedural purposes, the party objecting designation of an issue as a contested matter and the
to the petition shall be considered the plaintiff, the assignment thereof to the civil trials calendar or the
objection is to be treated as a complaint, and the probate calendar shall not affect the underlying
complaint shall be deemed to have been filed on the proceeding, and the proceeding shall continue to the
date of the assignment to the civil trials calendar. extent that such administration is not inconsistent
with the issues being contested.
COMMENTARY:
This rule makes clear that a contested (f) Appeals. An order resolving the issues in a
matter assigned to civil trials is to be treated contested matter shall be reduced to judgment in
the same as, and be subject to the same rules accordance with Rule 34 of these rules and may be
as, a normal civil action. However, because appealed as provided therein.
the right to jury trial is limited under the
Uniform Probate Code, assignment of a COMMENTARY:
contested matter to civil trials does not This rule is to clarify that orders
thereby give rise to a right to jury trial. disposing of an issue are appealable; this is
The party who files the objections in a so that contested issues can be resolved
matter shall be considered the plaintiff for quickly and a proceeding terminated as soon
purposes of the civil procedural rules, but as possible.
not necessarily for substantive issues as to
the burden of proof or burden to go forward. (g) Termination of Assignment. When the
contested matter is finally resolved, whether by
(d) Procedures in Retained Contested settlement, final unappealed order, or disposition on
Matters. Whenever the court retains jurisdiction of appeal, the assignment shall terminate and all matters
a contested matter as a probate proceeding, the court relating to the proceeding shall thereafter be
in the order of assignment may, at the request of the controlled by these rules.
parties, designate and order that any one or more of
the Hawai#i Rules of Civil Procedure and/or the COMMENTARY:
Rules of the Circuit Courts shall be applicable in This rule is to make clear the
such matter. assignments of contested matters are limited
in scope to the matter actually contested,
COMMENTARY: and the use of other rules or procedures not
This rule allows the court to adopt any within the scope of these rules terminates
of the Rules of Civil Procedure or Rules of when the contested matter is concluded.
the Circuit Court to govern the conduct of
HRS § 560:1-201 either because a statute order to the other documents or submit it
may not require notice to all interested simultaneously with them, as a separate document.
persons (for example, see HRS § The party shall present the ex parte petition to
560:-403(a) which requires notice to certain the presiding judge directly, with a certificate of
individuals but not to creditors), or because service stating that the petitioner will serve notice on
the particular matter being heard does not all interested persons entitled to notice immediately
affect the interests of a person who is after filing of the order. If the petition is granted, the
statutorily defined as an interested person party shall then cause all of the documents to be filed
(for example, an unpaid creditor remains an with the clerk and then serve the petition and order
interested person until his or her claim is on all interested parties entitled to notice (unless
resolved, but that interest is not affected by otherwise ordered by the court).
a challenge to the validity of a will or codicil
since it matters not to the creditor whether COMMENTARY:
the debtor/decedent died testate or intestate. This rule follows general practice,
It must be kept in mind that a person who is specifying the necessary elements to an ex
an interested person at the outset of a parte submission to the court. The order may
probate may lose his or her status as such be attached to the petition and supporting
when his or her interest has been resolved. documents or submitted separately, but at
For example, a specific devisee who has the same time and as part of the same packet
received his or her devise or an heir who is to the court. The rule also adopts a
not a beneficiary of a will is an interested prospective certificate of service, which is
person at the hearing on the petition for otherwise very rare in probate court
probate, because denying the petition and practice.
declaring an intestacy will result in an
inheritance passing to the heir. Such an heir
loses his or her status as an interested VII. ACCOUNTINGS
person once the will is admitted to probate,
because a consequence of the admission of Rule 25. APPROVALS BY INTERESTED
the will to probate is that he or she will not PERSONS.
share in the decedent's estate. Prior to presentation of an accounting to the
Differentiating between emergency ex court for approval, the petitioner may secure and
parte petitions in paragraph (b) of this Rule present with the petition for approval of accounts the
23 and those for which notice and hearing approvals of the accounting by interested persons. If
are just being waived will facilitate all interested persons approve the accounting and
document handling by the court and help their approvals accompany the petition, the petition
expedite processing of emergency may be presented and the accounting approved on an
documents. ex parte basis. If approvals of fewer than all
(Amended June 25, 2003, effective July 1, 2003.) individual interested persons are obtained and the
petitioner desires the court not to appoint a guardian
Rule 24. FORMAT AND PROCEDURE. ad litem or master, then the petitioner's counsel shall
A party submitting an ex parte pleading to the submit an affidavit regarding the effort made to
court shall clearly state the relief being sought and secure approval of the interested persons and the
the facts and legal basis justifying it. The party shall court may appoint a guardian ad litem for any minor,
attach to the petition an affidavit of counsel unborn, and unascertained beneficiaries, and may
explaining the basis for the court issuing an order ex appoint a master to review the actions and
parte and attach any exhibits relating to the relief accounting of the fiduciary on behalf of the court.
sought and a proposed form of order granting the Where the accounting must be approved by the
petition. The party shall file the petition, affidavit, attorney general acting as parens patriae, the court
and exhibits as one document and either attach the shall appoint a master to review the actions and
accounting of the fiduciary on behalf of the court. amount and basis of fiduciary fees taken or charged
during the accounting period, (4) a detailed
COMMENTARY: accounting of the transactions of the trust or estate
The probate code no longer requires during the accounting period, and (5) a copy of any
that accountings be filed and approved by auditor's report and auditor's management letter
the court. However, if accountings are received by the trust or estate during or with respect
submitted to the court for approval, they to the accounting period. In addition, trust
must conform with Rules 25 and 26. This accountings shall include as an exhibit once every
rule also encourages attempts by the five calendar years a copy of the controlling trust
petitioner to obtain approvals of interested documents. The detailed accounting of transactions
persons to an accounting prior to the may summarize regular and minor transactions and
presentation of the accounting to the court. transactions that are internal to the accounting
Where all interested persons have approved, system being used, with a goal of eliminating
the petition will be granted in the court's needless detail and making the accounting easier to
discretion on an ex parte basis. If approvals understand, while presenting sufficient information
cannot for some reason be obtained from all to understand and track the transactions of the trust
interested persons, then counsel may elect to or estate.
submit an affidavit regarding the failure to
do so and request waiver of a guardian ad COMMENTARY:
litem or master. Based on the affidavit, the This rule is partially the result of
court may appoint a master or guardian ad concerns raised by the First Circuit Court
litem, but may not necessarily do so, and and discussed by an ad hoc committee
may proceed without the approvals. composed of attorneys, accountants,
Appointment of a master in charitable trust masters, the attorney general's office, and
accountings is automatic, because the all Hawai#i trust companies in the fall of
Attorney General's office does not normally 1991. No agreement was reached by that
review accountings in detail. committee as to any one form of accounting,
(Amended November 12, 1997, effective but the need for the element described in
December 15, 1997.) items (1)-(5) of the rule were believed
important. This rule does not mandate any
Rule 26. FORMAT AND CONTENT. form of detailed accounting, leaving that to
All accountings to the court shall be typewritten the fiduciary's discretion. By requiring the
or prepared by computer and presented by petition, additional exhibits (1)-(3) and any auditor's
and shall include in the petition for a trust or reports, the precise form of the accounting is
conservatorship proceeding a brief description of the less important; the summary sheets will
operations and holdings of the trust or estate during provide the information at a glance that
the period of the accounting and a list of the names most interested parties want, while the
and addresses of the current beneficiaries according detailed accounting is available for those
to the fiduciary's records. Attached to the petition in wishing to delve into the minutiae of the
all accountings shall be a complete financial detailed transactions. This rule attempts to
accounting for the period of accounting, including in achieve a balance between that detail and
order (1) a brief summary at the beginning of the ease of understanding.
attachment summarizing receipts and disbursements This rule will result in greater work for
during the accounting period, (2) a list of the assets fiduciaries in producing the additional
of the trust or estate at the end of the accounting pages required by (1)-(3), but those are
period, including its value for administration anticipated to be only a few pages in length,
purposes (the inventory value for probate and the added time and cost to produce them
accountings and the current fair market value for all should be offset by the time and cost saved
other accountings), (3) a summary explaining the
behalf of the beneficiary or beneficiaries that the obligation, the master is granted broad
guardian ad litem represents. access to the records and staff of the
COMMENTARY: fiduciary.
This rule clarifies the procedures with (Amended November 2, 1995, effective January
respect to the appointment of a master or 2, 1996; further amended May 17, 2004, effective
guardian ad litem, and their roles. The July 1, 2004.)
petitioner is charged with notifying the
official of appointment and supplying copies Rule 30. RESERVED.
of all relevant documents.
Rule 31. COMPENSATION AND EXPENSES.
Rule 29. ROLE OF MASTER. The court shall set the compensation of masters,
Unless otherwise ordered by the court, the master guardians ad litem, and Kokua Kanawai and order
shall review the operations of the fiduciary in light of the payment of such compensation from the assets of
the terms of the controlling document, as well as the the trust or estate or, when appropriate, taxed in
financial transactions of the trust or estate. The whole or in part to a party to the proceeding or to a
fiduciary shall supply to the master a copy of the party’s attorney. In setting compensation, the court
accountings and any masters’ reports for the prior may consider the knowledge, skill, and expertise of
three accounting periods and shall make available for the official; the difficulty of the assignment; the
the master’s inspection all accounting records for the quality of the work performed; and the time spent by
current accounting period. The master shall have the official on the assignment. The court shall also
unlimited access to the books and records of the order the reimbursement of the reasonable expenses
fiduciary with respect to the trust or estate that are and costs of the master, guardian ad litem, or Kokua
not protected by privilege, including minutes of all Kanawai incurred in fulfilling the official's duties.
meetings, and may interview any employee of the With prior court approval upon petition and after
fiduciary regarding the trust or estate as the master notice and hearing (which notice and hearing may be
deems appropriate. The master shall submit a written waived by the court in appropriate circumstances),
report of the master’s findings to the court and serve the master, guardian ad litem, or Kokua Kanawai
a copy on all interested persons. Interested persons may retain the services of attorneys, accountants, or
may file objections or responses to the master’s other professionals or agents. If the compensation
report, and parties may object or respond to such and/or reimbursement is not paid within a reasonable
pleadings, within the time limits set forth in Rule time, the official may petition for an order to show
10(c). cause.
COMMENTARY: COMMENTARY:
This rule clarifies the role of the master, Compensation of court-appointed
as many masters currently are unsure of officials has never been very clear. This rule
their position and limit themselves to a strict clarifies that court-appointed officials
review of the financial accounting presented. (including Kokua Kanawai appointed under
While there is a presumption of good faith Rule 113) will be paid, normally from the
and regularity that applies to accountings, trust or estate, but the court can direct a
In re Estate of James Campbell, Deceased, party to pay in appropriate situations. This
42 Haw. 586, 607 (1958), the master serves also clarifies that the official's reasonable
as the eyes and ears of the court, and out-of-pocket expenses will be reimbursed,
therefore should review the entire scope of and that the official may hire others to assist
the fiduciary's performance during the in carrying out the official's duties, where
accounting period pursuant to the governing such employment and the terms of
instrument. In order to properly fulfill the employment have been approved in advance
by the court. Normally employment of
assistants by the official will require notice
and hearing, but the rule allows the court to (b) have a blank date line and signature line for
dispense with notice and hearing where the judge, with the words "Judge of the
circumstances warrant (such as in hiring an Above-Entitled Court" and the judge's staff shall
attorney to pursue an appeal of a court print, type or stamp the name of the judge under the
order which has strict time limitations). signature line;
General excise tax will not be separately (c) note on the bottom of the court's signature
approved of by the court, but should be built page the case number, abbreviated case name, and
in to the compensation sought by the official. title of the order, separated from the rest of the text
(Amended April 28, 2006, effective July 1, 2006.) on the page by a solid horizontal line; and
(d) when the court rules on a matter subject to
the receipt of further documentation, submit the
IX. ORDERS required documentation with a brief written
explanation of what transpired at the hearing and the
Rule 32. SETTLEMENT OF ORDERS. reason for submission of the documentation.
Within 10 days after a decision of the court,
including any interlocutory order, the prevailing COMMENTARY:
party, unless otherwise ordered by the court, shall This rule standardizes current court
prepare an order in accordance with the decision and practice. On occasion the court will grant a
seek the approval as to form of opposing counsel, petition even though some of the necessary
any master and guardian ad litem, and any pro se paperwork (such as a receipt for notice,
interested persons in opposition who appeared at the affidavit in support of extraordinary fees, or
hearing thereon and deliver to the court the original proof of service) has not been filed. In such
and one copy. If approval as to form is not secured circumstances, the party presenting the
within 10 days, the prevailing party shall serve a order should clip the requested documenta-
copy upon each party who has appeared in the action tion to the order when it is presented to the
and deliver to the court the original and one copy, court, along with an explanation of the
along with notice of service on the other parties. If condition imposed at the hearing.
any party objects to the form of a proposed order,
that person shall within 5 days serve upon the Rule 34. ENTRY OF JUDGMENT,
prevailing party and deliver to the court a statement INTERLOCUTORY ORDERS,
of that party's objections and the reasons for failing APPEALS.
to approve, if any, the form of the party's proposed (a) Entry of Judgment. All formal testacy
order. Thereafter, the court shall settle the order. orders, orders of intestacy and determination of heirs,
Approval as to form shall not affect the right of the orders establishing conservatorship and/or
approving party to appeal from any order issued. guardianship, and orders establishing protective
arrangements shall be reduced to judgment and the
COMMENTARY: judgment shall be filed with the clerk of the court.
This rule provides a definite method of Such judgments shall be final and immediately
settling orders in probate proceedings and appealable as provided by statute. Any other order
incorporates the civil rule of approval of that fully addresses all claims raised in a petition to
counsel, which is not currently practiced in which it relates, but that does not finally end the
probate. proceeding, may be certified for appeal in the manner
provided by Rule 54(b) of the Hawai#i Rules of Civil
Rule 33. FORM OF ORDERS. Procedure.
All parties submitting orders for the court's (b) Interlocutory Orders. In order to appeal
signature pursuant to a formal hearing shall: from any other order prior to the conclusion of the
(a) indicate the hearing date or dates and the proceeding, the order must be certified for appeal in
name of the hearing judge under the case number and accordance with Section 641-1(b) of the Hawai#i
character of the document; Revised Statutes.
(c) Final Judgment Closing Proceeding. At (4) orders allowing a final report of a
the conclusion of the proceeding, a final judgment conservator under HRS § 560:5-420(a). All
closing the proceeding shall be entered and filed with other orders may be certified for appeal
the clerk of the court, at which time all prior pursuant to either Rule 54(b) or HRS §
uncertified interlocutory orders shall become 6 4 1 - 1 ( b ), d e p e n d i n g u p o n t he
immediately appealable. circumstances, but is not necessary to file a
(d) Appeals. Final judgments as to all claims separate judgment if an immediate appeal is
and parties, certified judgments, certified orders, and not contemplated.
other orders appealable as provided by law may be (Amended November 2, 1995, effective January
appealed pursuant to the Hawai#i Rules of Appellate 2, 1996; further amended April 28, 2006, effective
Procedure applicable to civil actions. July 1, 2006.)
Rule 43. COMMUNICATIONS WITH THE grant only where the attorney clearly
COURT; ADVICE. establishes to the court (perhaps in
Communication with the court staff shall be chambers under sealed record) that effective
limited to essential matters that cannot be resolved in representation is no longer possible.
other ways. Under no circumstances shall court staff There may also be circumstances where
render any procedural or legal advice to attorneys, an attorney represents a client in an initial
attorneys' staffs, or individuals. formal proceeding but the estate is then
administered informally with the personal
COMMENTARY: representative acting pro se. In such a
This rule conforms with current court situation, counsel could simply file a
policy. The First Circuit Court's Memo of withdrawal of counsel signed by the client
December 22, 1983 provides that "the law stating that the personal representative
clerks and all other staff will decline to would thereafter act on his or her own
provide attorneys with advice on the proper behalf. Nothing in this rule is intended to
documents to file, the proper form of supersede the law that provides that a
documents, and the appropriate contents of corporate fiduciary cannot act pro se before
documents filed. They will also decline to the court.
explain written court orders and rulings." (Amended November 12, 1997, effective
December 15, 1997.)
Rule 44. WITHDRAWAL OF COUNSEL.
Effective upon approval by the court, an attorney Rule 45. EXPEDITION OF COURT
may withdraw as counsel in matters pending before BUSINESS.
the court by filing a Withdrawal of Counsel and (a) Required Notice. The attorney for the
Substitution of Counsel, if any, signed by the client, petitioner shall advise the court promptly when a
evidencing the client's agreement to the withdrawal. contested matter is settled or the need for a hearing
If the client's consent cannot be obtained or if the no longer exists. An attorney who fails to give the
attorney finds it necessary to withdraw because of a court such prompt advice may be subject to such
conflict of interest under Rule 42(b) or (c), an sanctions as the court deems appropriate.
attorney may withdraw as counsel only upon filing a (b) Effect of Failure to Appear. The court may
petition to withdraw, giving notice to the client, and sanction any attorney who, without just cause, fails
receiving the approval of the court. Withdrawals are to appear at a hearing for which the attorney's client
subject to the guidelines of Rule 1.16 of the Hawai#i is the petitioner or an objecting party, or any attorney
Rules of Professional Conduct and other applicable who unjustifiably fails to prepare for a presentation
law. The court shall determine the division of fees to the court necessitating a continuance.
between the attorney who has withdrawn and the
new attorney if mutual agreement cannot be reached.
COMMENTARY:
This rule adopts RCC 10.1 regarding
withdrawal of counsel where the consent of
the client cannot be obtained. Because of the
qualified attorney-client relationship
explained under Rule 42, it is possible that a
conflict between the attorney's various
duties exists to the extent that the attorney
cannot continue to effectively represent the
fiduciary. In such a situation, the attorney
may petition the court for permission to
withdraw, which the court will normally
(d) Updating of Letters. A fiduciary at any time deceased upon the filing of an initial
may request upon payment of the appropriate fee that pleading with respect to that deceased and
the clerk of the court issue updated copies of the then requiring all later filings of any nature
letters previously issued to the fiduciary and relating to that deceased to use the same P.
currently in effect, and the clerk shall certify on the No., the court can be assured of having all
face of the updated letters that they are still in full pleadings relating to a particular deceased
force and effect if more than three (3) years from the in one file. In addition, assigning a P. No.
date the letters were originally issued has not elapsed upon the filing of a Demand for Notice or
or any renewal period has not expired. Will Deposit will lessen the chance that the
Demand or Will is missed, because the court
COMMENTARY: staff will not have to cross-index case
The definition of "Letters" in HRS § numbers or check different classes of cases
560:1-201 provides that letters testamentary when a probate proceeding is initiated.
and letters of administration are effective for Finally, using one case number throughout
only three (3) years, unless renewed for the administration of a deceased's estate will
good cause. Rule 48(d) has been revised to eliminate burdensome procedures and
reflect this limitation. confusion when the proceeding changes
(Amended November 12, 1997, effective form, such as when a small estate is
December 15, 1997; further amended April 28, 2006, converted into an informal probate, or an
effective July 1, 2006.) informal into a supervised.
The second part of the rule, requiring a
Rule 49. RESERVED. notation of the type of proceeding at the
point the document is filed, conforms to civil
court practice and assists the court staff and
PART B. PROBATE PROCEEDINGS parties to readily identify the status and
nature of the estate. The wording of the case
I. COMMENCEMENT caption may also change as the character of
the proceeding changes, for example from
Rule 50. INITIAL PLEADINGS. "In the Disappearance of John Doe, born
(a) Case Numbers. The clerk shall assign a P. January 1, 1920" to "Estate of John Doe,
No. to each probate case matter directly related to the Deceased."
administration of a deceased's estate. Each party
presenting a document regarding the same
administration of the estate of that deceased shall use
the same P. No., and immediately below the P. No.
on all documents shall note the type of proceeding
(Small Estate, Informal, Supervised, Will Deposit,
Demand for Notice, No Fault, Determination of
Death) to which the pleading applies; the notation
may change as the status of the proceeding changes.
COMMENTARY:
This rule changes the Rules of the
Circuit Courts in defining the types of case
filings allowed. Case filing designations
S.E., W.D., D.N., and the like will be
eliminated in favor of using a P. No. for all
proceedings relating to a deceased's estate.
By assigning a P. No. to a particular
(b) Identification of Beneficiaries and Heirs. a prior will raises many questions of
The party preparing any petition shall list the names whether an alleged prior will is the
and addresses, to the extent known, of all heirs at law immediately prior will, and all the proof and
of the deceased and of all beneficiaries entitled to capacity questions raised with the will
take under a will presented for probate and its presented for probate.
codicils. If the heirs at law are other than the spouse If a vested beneficiary dies prior to the
or reciprocal beneficiary, descendants, or parents of filing of the petition or application, then the
the deceased, the petitioner shall affirmatively state estate of the beneficiary shall be named as
that the deceased left no such survivors. The the beneficiary and given notice. If a probate
petitioner shall attach to the petition a copy of the estate has not been started for the deceased
death certificate for the beneficiary named in the beneficiary, the petitioner is under no
will, who died before the deceased, or any other obligation to commence probate
evidence, by affidavit or otherwise, to establish that proceedings on behalf of the deceased
the beneficiary is dead. If a beneficiary of an estate beneficiary, but the petitioner should
dies after the deceased but prior to the undertake reasonable efforts to notify known
commencement of the proceeding, the petition shall relatives of the deceased beneficiary of the
identify such beneficiary's estate, or the successor vested interest.
beneficiary, as the case may be, as the appropriate The last sentence of the rule requires
party and shall notify such beneficiary's personal notice to those persons known to the
representative, if any. Alleged illegitimate children petitioner or applicant to be alleged
of a male deceased of whom the petitioner or illegitimate children of a male deceased, so
applicant is aware shall also be identified and given that those persons will have an early
notice of the commencement of the proceeding. opportunity to take action to prove their
relationship. In most cases, the actual
COMMENTARY: determination of paternity will have to be
This rule is intended to clarify the status made by the family court, but identifying the
of beneficiaries and heirs on the face of the potential children should lead to more
petition and to establish why a particular expedient and final settlement of the estate.
person is not being considered a beneficiary
of the estate. Contingent beneficiaries who (c) Informal Probate Information Sheet. Any
will not take because the contingency giving informal application that seeks probate of a will,
rise to their right to take did not occur need determination of intestacy, or appointment of a
not be given notice. (For example, where a personal representative shall be accompanied by a
will leaves the residuary estate to Joe, but if completed informal probate information sheet, in
Joe does not survive the testator, to Bill, and form acceptable to the registrar.
Joe survives the testator, then Bill need not
be given notice as his rights never vest. But COMMENTARY:
if the contingency has not been settled at the To help the registrar determine whether
time of the filing of the petition, then the advance notice will be required in informal
contingent beneficiary must be given notice.) applications, an informal probate
The committee considered the rights of information sheet that summarizes the
beneficiaries named in a prior will but found nature of the proceeding must be filed.
no statutory or common law right to notice (Amended November 12, 1997, effective
to such possible parties solely to enable December 15, 1997.)
them to bring a will contest. HRS §
560:3-403(a) specifically limits the class of
individuals entitled to notice of the
commencement of a probate proceeding.
Extending a notice right to persons named in
COMMENTARY:
Rule 62 has been deleted because
inventories are no longer required to be
approved by the court.
(Amended November 12, 1997, effective
December 15, 1997.)
Rule 67. CONSENT TO SALE. whether an escrow agent will be used in the closing,
If the will does not require that court approval of (d) a statement that the sale and the commissions and
real estate sales be obtained, the personal fees payable to brokers may be subject to court
representative may notify the beneficiaries of the confirmation and overbid procedures if required by
personal representative's intention to list real the will or any devisee in a testate proceeding or an
property for sale and request the beneficiaries to heir in an intestate proceeding, (e) a statement that
consent to any sale of the property, so long as a the property will be conveyed "as is" by quitclaim or
specific price is obtained. If all the beneficiaries limited warranty deed, (f) a minimum deposit of the
consent in writing, the personal representative may lesser of $5,000 or the full purchase price for the
list and sell the real property for the approved price, property, and (g) the signature of the personal
without complying with the provisions of Rule 68 representative. The personal representative shall
through 72. If the consent of all the beneficiaries retain the minimum deposit or place it with the
cannot be obtained, then the Deposit Receipt Offer escrow.
and Acceptance (DROA) shall contain the terms set
forth in Rule 68, except that the statement required in COMMENTARY:
(d) thereof shall provide that the sale and This rule has been revised to reflect the
commissions may be subject to court approval. Once amendment to HRS § 531-29, which now
the personal representative has received an offer requires court confirmation of a sale only if
which the personal representative wishes to accept, required by the will of an heir or devisee
the personal representative may again ask the with an interest in the property.
beneficiaries to consent to the specific sale terms set (Added November 12, 1997, effective December
forth in the DROA. If the beneficiaries consent in 15, 1997.)
writing, then the sale may proceed without
complying with Rules 69 through 72. Rule 69. NOTICE.
If court confirmation of the sale is sought, the
COMMENTARY: following procedures shall apply:
The purpose of this rule is to allow the (a) Method. The petitioner shall prepare a
personal representative to obtain the notice of the petition for confirmation of sale and
beneficiaries' consent to a specific sales shall serve the notice on the prospective buyer and
price before listing the property for sale so all persons interested in the property or the proceeds
that there is no need to include court thereof. The petitioner shall post a copy of the notice
confirmation as a possible condition to the at the courthouse. The petitioner shall set forth on the
sale. The possibility of court confirmation first page of the notice the offering price, the
and overbid procedures may have an required minimum bid price, and the tax map key
adverse impact on the personal number(s) for the property being sold.
representative's ability to sell the property (b) Newspaper Publication. The personal
and, thus, lower the sales price. If prior representative may publish the notice in a newspaper
approval by all the beneficiaries is obtained in the circuit where the property is located. The
beforehand, court confirmation can be court, upon petition of an interested person or upon
avoided and the property listed for sale its own motion, filed within 10 days of the filing of
without any reference to court confirmation. the petition for confirmation of sale, may order
(Amended November 12, 1997, effective publication in the newspaper.
December 15, 1997.) (c) Failure of Notice. When the personal
representative does not cause the notice to be posted
Rule 68. SALES CONTRACTS. or served within the time required by statute, the
The personal representative may sign contracts court may continue the hearing on the petition for
for sale of real property, including in each contract: confirmation of sale to the next available hearing
(a) the description of the property interest being sold; date. The court will accept written offers (overbids)
(b) the name and address of the buyer, (c) a statement until the time of the rescheduled hearing. The
personal representative shall prepare the amended (b) Overbids. If an initial bid has been offered
notice of hearing for the rescheduled hearing date and accepted, a further overbid from any person shall
and serve it on the same persons who were served be permitted at least five percent greater than the
with the notice of the original petition. initial acceptable bid. If such an overbid acceptable
to the personal representative is made, the court shall
COMMENTARY: solicit additional bids in such manner and amount as
This rule clarifies the provisions of HRS it shall determine. When more than one initial bid is
§ 531-29, relating to confirmations of sale of offered prior to the hearing, the highest bid
real property, by normally waiving the need acceptable to the personal representative shall set the
for published notice and requiring notice to base for any additional overbids at the hearing, and
the proposed buyer and the beneficiaries of where more than one initial bid is for the same
the estate who would otherwise be entitled to amount, the bid received by the court first shall set
the real property. The posted notice is the base for any additional overbids at the hearing.
required to have certain information on its Overbids, when made, shall clearly state any
first page, because often the notices run over conditions, contingencies, or financing terms, and the
one page, and are posted behind glass, personal representative shall have the sole authority
making it difficult for potential bidders to to determine whether an overbid is acceptable.
gain access to the complete information
required. Because notice must be posted at COMMENTARY:
least 15 days prior to the hearing, the rule This rule implements a number of
provides for continuances, and in the requirements to make for the most efficient
interest of getting the best price for the handling of confirmation of sale
estate, allows further bids up to the time of proceedings. The minimum first overbid
the continued hearing. amount after the initial bid is set at five
(Amended November 12, 1997, effective percent, to save time and ensure meaningful
December 15, 1997.) overbids. Thereafter, additional bids will be
accepted in such manner and in such
Rule 70. BIDS AND OVERBIDS. amounts as the court determines. The rule
(a) When Due; Deposits. A person desiring to further clarifies that it is the decision of the
bid on a property at a confirmation of sale hearing personal representative, not the court, as to
must deliver the bid to the court clerk prior to the whether an overbid is acceptable.
time set for the hearing on the petition, accompanied The personal representative decides
by the required deposit. The court may determine whether a bid is acceptable. Although a bid
that bids that are not received in time, or that are not may be higher in amount than a previous
accompanied by the required deposit, will not be bid, the personal representative may accept
considered. a lower bid whether the terms of the
proposed sale are more favorable to the
COMMENTARY: estate. The personal representative may
For the clarity and consistency of want to consider whether the bid is for cash
procedure, bids on a sale of real property or on terms, the differences in the terms of
are required to be delivered to the clerk different bids anticipating financing, and the
prior to the time set for the hearing. The credit worthiness of the bidder.
clerk will time-stamp the envelope
containing the bid and deposit and then
immediately deliver it to the court. However,
the court can make exceptions to this
general rule where the estate will benefit
thereby.
Rule 71. FAILURE TO COMPLETE SALE. confirmation of sale, and may be paid directly from
A successful bidder at a confirmation of sale escrow as a cost of sale.
hearing who fails to complete the purchase of the
property shall pay, as the court in its discretion may COMMENTARY:
order, (a) an amount sufficient to cover all escrow This rule clarifies that extraordinary
charges, attorneys' fees, extraordinary fees, and fees payable to the attorney and the personal
expenses incurred and paid by the personal representative are to be determined at the
representative and approved by the court as part of confirmation hearing if the attorney and
the confirmation of sale and (b) any additional personal representative desire, and may be
damages proximately caused by the failure. After any paid out of escrow. By using this method,
such failure, the personal representative, in his or her rather than waiting until final accounts, the
discretion, may either reoffer the property for sale or fees are tied directly to the property sale and
may enter into a contract for sale with the next can have favorable income tax effects.
highest bidder who is willing to purchase at his or Counsel should be certain to specify at the
her last bid price, subject to court confirmation. fees are to be paid from escrow at closing in
the court order, so that escrow does not miss
COMMENTARY: it.
If a bidder fails to complete a sale, this Paying these fees from escrow as a
rule requires the bidder to pay the expenses portion of the sale fairly and timely
incurred in going through the confirmation compensates the personal representative and
of sale process. In addition, the court may attorney and also may have tax advantages
assess additional damages to make the to the estate by clearly tying the fees to the
estate whole and to discourage fraudulent sale as an expense of the sale. The language
bidding efforts, such as where a person who of the rule is permissive, however, as there
cannot satisfy a bid raises the price in an may be reasons that the personal
effort to scare off other bidders and then representative or attorney wants to wait
seeks to purchase the property at a lower until final accounts to have the fee approved.
price later, or where a speculator seeks to
setup a back-to-back sale and plans to walk
away from the purchase if the other buyer
does not come through.
Once a sale falls through, the personal
representative may then reoffer the property
for sale. Backup bids are not accepted in the
confirmation of sale process because so
much time can elapse between the time of
the confirmation hearing and the eventual
closing of the sale, and market conditions
can change. The attorney should be certain
to include the forfeiture provision (subject to
further order of the court) in the order
confirming sale.
(b) Broker's Commissions. In addition to the since the date of the individual's death. The
fees allowed to the personal representative and the proceeding is commenced by the filing of a petition
attorney, the court may allow broker's commissions setting forth (1) the fact of the deceased's death with
on the sale in an amount agreed to by the parties, supporting evidence; (2) that the deceased left real
unless there is a successful overbid. property in the judicial circuit; (3) a description of
Where a successful overbid is made at the the law determining those persons who were heirs at
confirmation of sale hearing and the original buyer's law of the deceased at the time of the deceased's
broker does not prevail, then the broker's commission death with citations; (4) that no estate of the
shall be divided as follows: deceased was previously probated in any jurisdiction;
(5) the names and, to the extent known, the addresses
of the heirs at law of the deceased at the time of the
Broker Commission Allowed deceased's death; and (6) to the extent known, the
Seller’s One-half of approved names and addresses of the currently-living heirs at
commission on original law of the deceased. The petitioner shall serve notice
offered price on all known living heirs at law of the deceased and
shall publish notice once a week for three
Original One-third of approved consecutive weeks in a newspaper of general
Buyer’s commission on original price circulation in the circuit where the property is
(unsuccessful) located, with the last date of publication no later than
ten days prior to the date of the hearing. At the
Successful One-sixth of approved hearing, the court may consider such evidence as is
Buyer’s commission on original presented by the parties who appear and enter an
offered price plus 100% of order determining that the deceased is dead and the
approved commission on names of the deceased's heirs at law at the time of the
overbid amount deceased's death. A proceeding to determine heirs
may be brought with respect to more than one
No excise or sales taxes may be added to any individual in a family line in one proceeding. The
commissions. Commissions shall be paid from order determining heirs shall be recorded in the
escrow at the close of the sale. Bureau of Conveyances of the State of Hawai#i.
COMMENTARY: COMMENTARY:
This rule has been amended to allow the Proceedings to determine the heirs of an
parties to negotiate brokers' commissions, individual are frequently required to clear
except where there is an overbid. Under the title to real property. This rule provides
prior rule, if only one broker was involved, guidance to a petitioner in the elements
the court allowed only a 5% commission required to bring such proceeding and
even if the parties had agreed to a 6% requires notice after diligent inquiry to all
commission. interested persons.
(Amended November 12, 1997, effective
December 15, 1997.)
by the clerk of the court, so that the chances adoption of the doctrine of equitable
of fraud are decreased. conversion (Bank of Haw. v. Horwith, 71
Haw. 204, 212, 787 P.2d 674 (1990)),
ancillary probate in Hawai#i of a vendor's
IX. ANCILLARY PROCEEDINGS interest in an agreement of sale or a
mortgagee's security interest should no
Rule 76. FILING OF DOMICILIARY longer be required, but a special
DOCUMENTS. administration may be necessary to provide
When a proceeding is brought that is ancillary to an authorized person to sign any deed in
a probate proceeding in another jurisdiction, the satisfaction of the agreement of sale or
petitioner, in addition to the pleadings normally release of mortgage. The vendee's interest
required for the proceeding, shall file with the court would clearly be subject to ancillary probate
prior to the issuance of Letters Testamentary or in Hawai#i.
Letters of Administration a certified copy of the
domiciliary proceeding's (1) petition for probate or Rule 78. RESERVED.
adjudication of intestacy; (2) order of probate or
administration; (3) letters testamentary or letters of Rule 79. NOTICE IN ANCILLARY
administration; (4) will and any codicils presented PROCEEDINGS.
for probate in the domiciliary jurisdiction; and (5) In addition to the persons normally entitled to
any documents closing the domiciliary proceeding. notice of a proceeding, the domiciliary personal
Documents from a foreign jurisdiction shall be representative shall be entitled to notice of all
exemplified or have attached thereto an apostille. ancillary proceedings. Where the only assets under
administration in this jurisdiction are specifically
COMMENTARY: devised pursuant to a will admitted to probate in this
It should be noted that, under jurisdiction, the residuary devisees of the estate shall
§ 560:4-204, a domiciliary foreign personal not be considered interested persons after the will is
representative will have all the powers of a admitted to probate.
local personal representative simply by
filing certified copies of its appointment and COMMENTARY:
any bond with the court. Neither an informal Where an ancillary proceeding
nor a formal proceeding is necessary. administers only real property that is
However, if an ancillary proceeding is specifically devised by a will admitted to
initiated, then the documents described in probate by the court, there is no need to
Rule 76 must be filed. notify other parties named in the will,
(Amended November 12, 1997, effective including the will's residuary beneficiaries,
December 15, 1997.) of the local proceedings. Therefore, in such
circumstances, only the specific devisee and
Rule 77. ANCILLARY INVENTORY. the domiciliary personal representative are
The inventory filed in an ancillary probate shall to be considered interested persons after the
include only assets subject to the jurisdiction of the will is admitted to probate.
court.
COMMENTARY:
Ancillary inventories should cover only
assets under the court's jurisdiction. These
include real property interests, certain
tangible personal property, and possibly
financial institution accounts located in the
State of Hawai#i. With the Supreme Court's
Rule 80. ACKNOWLEDGING DOMICILI- Hawai#i real property. This rule requires
ARY FIDUCIARY OR BENEFI- very little involvement by the court, and the
CIARY AUTHORITY TO SIGN clerk issues the order as an administrative
PROPERTY DOCUMENTS. function. This rule should eliminate the need
A domiciliary personal representative (or for special administrations previously used
residuary beneficiary of the domiciliary estate, if the to appoint a person with authority to sign
domiciliary estate has been closed) may petition the such documents.
court for an order to authorize the petitioner to sign
a release of mortgage or deed in satisfaction of X. FLAG SHEETS
agreement of sale or similar document affecting title
to real property, without petitioning for ancillary Rule 81. FLAG SHEETS REQUIRED.
administration. The petitioner shall state in the An original and not less than two copies of flag
petition (a) the petitioner's name, address, telephone sheets in the form ordered by the court shall be
number, and federal tax identification number; (b) presented to the clerk of the court for all hearings to
the state, court, and proceeding number and title of admit a will to probate, to adjudicate intestacy, to
the domiciliary probate proceeding; (c) the name and appoint a personal representative, to confirm the sale
address of the domiciliary personal representative of real property, to determine an elective share, and
and whether such fiduciary's appointment has been to approve the final accounts of the personal
terminated; and (d) a description of the document for representative. These flag sheets shall conform to the
which a signature by a personal representative of the requirements of Rule 4 and shall be presented to the
deceased is required. The petitioner shall attach to court no later than ten days prior to the scheduled
the petition a certified copy of the order appointing hearing. Flag sheets shall not be file-marked as a
the domiciliary personal representative and the order pleading, but shall be date-stamped by the clerk and
of distribution of the domiciliary estate (if such latter placed in the court file for reference. Failure to
order has been filed). The court may order the present a required flag sheet in time shall cause the
petitioner to sign the designated documents based hearing to be continued to the next available date.
upon the petition and accompanying papers, or upon Where the facts of the case as set forth in the flag
such other evidence as the court requires. sheet change after submission of the flag sheet to the
COMMENTARY: court, an amended flag sheet shall be presented.
This rule addresses the common
problem where a non-Hawai#i resident COMMENTARY:
retains an equitable interest in real property This adopts the rule of Probate Memo 1
in Hawai#i, such as through a mortgage or and makes flag sheets mandatory in all
vendor's interest in an agreement of sale, probate proceedings in all circuits. The flag
and someone is needed to sign documents to sheets are not filed as pleadings but are
release the deceased's interest. The doctrine date-stamped as having been received by the
of equitable conversion, which has been clerk to eliminate the chance for lost
adopted in Hawai#i, gives that deceased's documents and to provide a clear record.
interest the character of personal property The flag sheet is normally placed in the
and, therefore is generally within the court's file for ready reference by the judge
jurisdiction of the domiciliary estate, but and court staff. It is anticipated that, with an
Hawai#i's Land Court statutes and Hawai#i appropriate top margin for the date stamp,
title insurers frequently require a Hawai#i the flag sheets will follow generally the
court order acknowledging the authority of format of current flag sheet forms 1-A, 1-B,
the person who attempts to sign documents. 1-D, and 1-E; they will ideally be prepared
This rule provides a quick and simple way, as pre-printed forms.
giving full faith and credit to the domiciliary (Amended November 2, 1995, effective January
court proceedings, to acknowledge the 2, 1996; further amended November 12, 1997,
person's ability to sign documents affecting effective December 15, 1997.)
(d) Validity of Demand. A Demand for Notice distribution of the estate (covered by the
filed other than in a pending probate proceeding shall order approving final accounts.)
be effective for a period of five years from the date (Amended June 25, 2003, effective July 1, 2003.)
of filing. A Demand for Notice shall only be
effective for the circuit in which it is filed. Rule 90. STATUTORY ALLOWANCES.
(a) Homestead Allowance and Exempt
COMMENTARY: Property. Property subject to a claim for Homestead
This rule attempts to clarify the Allowance or Exempt Property shall be distributed
ambiguous status of a Demand for Notice by the personal representative without court order
and to make sure that demands are not lost upon the submission of a claim for such allowances
in the system. This rule puts an equal burden by an eligible person to the personal representative.
on the demandant and the petitioner to The person or persons receiving the allowance or
check the court records for pending property shall sign a receipt therefor.
demands and proceedings since the (b) Family Allowance. A family allowance
deceased's death or for a five-year period, aggregating no more than $18,000 shall be
whichever is shorter. The court should not distributed by the personal representative without
have to check the files to determine if court order upon the submission of a claim therefor
demands have been made. by an eligible person to the personal representative.
Family allowances in excess of $18,000 in the
Rule 89. TERMINATION OF POSSESSION aggregate shall be paid only upon court order after
OF REAL PROPERTY. petition by the individual or individuals seeking the
Termination of possession of real property held allowance, with notice to all interested persons
by the estate and distribution to those entitled thereto including creditors who have filed unsatisfied claims
may be ordered on an ex parte basis upon petition against the estate. The personal representative is
that (1) states that the property is not necessary to the permitted to assist and use estate resources to prepare
full and complete settlement of the estate and (2) is and pursue the petition for family allowance in
accompanied by the joinders of the beneficiaries who cooperation with or on behalf of those entitled to it.
are entitled to the property under the will or the laws The person or persons receiving a family allowance
of intestacy. shall sign a receipt therefor.
COMMENTARY: COMMENTARY:
A personal representative has the Common court practice requires the
authority to transfer assets of the estate, filing of a claim, notice, hearings, and an
including real property, without court order, order for the payment of statutory
except under certain circumstances with allowances. However, the governing statutes
respect to the sale of real property. HRS § (HRS §§ 560:2-401 through -404) do not
560:3-715. The Land Court statute, HRS § require a court order and make it clear that
501-171(a), provides for the transfer of an the allowances are to be paid by the
interest in real property from a probate personal representative upon claim. This
estate to be supported by a court order of rule reverses the common practice in favor
distribution, but no corresponding provision of the statutory scheme.
exists for Regular System property. In order
to maintain consistency in probate court (c) Elective Share. A petition for elective share
practice and procedures, this rule provides shall be served upon all interested persons, including
for an order terminating possession of any recipient or beneficiary of property that may be
property for all transfers during the included in the augmented estate. Any notice of
administration of an estate, except those hearing shall contain a statement notifying interested
resulting from a sale (covered by other persons that they are required to file and serve,
rules) or at termination and final within 30 days from the date of service of the
COMMENTARY:
Too frequently in tort actions, the
plaintiff's attorney forgets about the need for
a conservator to represent the interest of an
injured person and then attempts to have the
trial judge assume jurisdiction of a
COMMENTARY.
This rule establishes standard notice
requirements consistent with those used in
other proceedings before the probate court.
III. EVIDENCE
IV. ORDER
Rule 8. SANCTIONS.
The court may, upon petition of a party or upon
the recommendation of the mediator, award sanctions
against any party or attorney for failure to comply
with these Mediation RULES. Before imposition of
a sanction, the court shall issue an order to show
cause as to why a sanction should not be imposed.
Sanctions may include costs and attorneys' fees
reasonably incurred by all other parties to the
mediation and in the prosecution of the petition or
recommendation for sanctions.
(Amended April 28, 2006, effective July 1, 2006.)
Rule 9. IMMUNITY.
Mediators selected by the parties or assigned by
the court pursuant to Rule 4 of these Mediation Rules
shall be absolutely immune from suit for all conduct
in the course of their official duties.