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HAWAI#I PROBATE

RULES

Adopted and Promulgated by


the Supreme Court
of the State of Hawai#i

February 16, 1995


Effective March 1, 1995
With Amendments as Noted

Comments and commentary are provided by the rules committee


for interpretive assistance. The comments and commentary express
the view of the committee and are not binding on the courts.

The Judiciary
State of Hawai#i
HAWAI #I PROBATE RULES

Table of Contents

PART A. GENERAL RULES

I. SCOPE OF RULES

Rule 1. SCOPE OF RULES

Rule 2. ONE FORM OF ACTION

Rule 2.1. MEDIATION RULES

II. PLEADINGS AND PETITIONS

Rule 3. PLEADINGS ALLOWED; FORM OF PLEADINGS


(a) Form
(b) Filings in Response to Petition or Master’s, Guardian ad Litem’s, or Kokua
Kanawai’s Report.
(c) Content of Petitions
(d) Documents Sealed Upon Filing
(e) Required Notice; Effect of Failure to Respond
(f) Amendment and Supplementation of Pleadings

Rule 4. FORMAT OF DOCUMENTS


(a) Compliance with Rules of the Circuit Courts
(b) Stapling and Punching of Documents
(c) Size of Paper, Folding Oversized Documents to Fit
(d) Notation of Hearing Time

Rule 5. SIGNING OF PLEADINGS


(a) Verification of Pleadings; Affidavits
(b) Signing by Attorneys

Rule 6. STIPULATIONS
(a) Presentation
(b) Format for Court Approval

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III. NOTICE; TIME

Rule 7. METHODS OF SERVING NOTICE

Rule 8. PROOF OF SERVICE

Rule 9. PUBLICATION OF NOTICE


(a) Permissible Publications
(b) Proof of Publication
(c) Content and Brevity of Notice

Rule 10. COMPUTATION OF TIME


(a) Computation
(b) Enlargement
(c) Time to File Pleadings or Reports
(d) Additional Time After Service by Mail

IV. HEARINGS

Rule 11. TELEPHONE CONFERENCE CALL HEARINGS


(a) Permissibility
(b) Arranging Conference Call
(c) Procedure

Rule 12. RESERVED

Rule 13. CONTINUANCES


(a) By the Court
(b) By Request of the Parties
(c) Effect of Continuance on Response Time

Rule 14. CONSOLIDATION OF PROCEEDINGS

Rule 15. PROOF OF OFFICIAL RECORD


(a) Authentication
(1) Domestic
(2) Foreign
(b) Lack of Record
(c) Other Proof
(d) Non-English Documents
(e) Interpreters

Rule 16. DETERMINATION OF FOREIGN LAW

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Rule 17. WITHDRAWAL OF PLEADING


(a) Procedure
(b) Effect of Withdrawal on Hearing

Rule 18. RULES OF EVIDENCE

V. CONTESTED MATTERS

Rule 19. DEFINITION

Rule 20. DISPOSITION OF CONTESTED MATTERS


(a) Assignment
(b) Guideline for Assignment
(c) Effect of Assignment to Civil Trials Calendar
(d) Procedures in Retained Contested Matters
(e) Effect on Underlying Matter
(f) Appeals
(g) Termination of Assignment

Rule 21. RESERVED

Rule 22. SUBPOENA


(a) For Attendance of Witnesses; Form; Issuance
(b) For Production of Documentary Evidence
(c) Service
(d) Contempt

VI. EX PARTE PROCEEDINGS

Rule 23. MATTERS WHEN EX PARTE PROCEEDINGS APPROPRIATE

Rule 24. FORMAT AND PROCEDURE

VII. ACCOUNTINGS

Rule 25. APPROVALS BY INTERESTED PERSONS

Rule 26. FORMAT AND CONTENT

Rule 27. REFERRAL TO MASTER

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VIII. MASTERS AND GUARDIANS AD LITEM

Rule 28. APPOINTMENT


(a) Master
(b) Guardian Ad Litem
(c) Order of Appointment
(d) Notice to Official
(e) Termination of Appointment

Rule 29. ROLE OF MASTER

Rule 30. RESERVED

Rule 31. COMPENSATION AND EXPENSES

IX. ORDERS

Rule 32. SETTLEMENT OF ORDERS

Rule 33. FORM OF ORDERS

Rule 34. ENTRY OF JUDGMENT, INTERLOCUTORY ORDERS, APPEALS


(a) Entry of Judgment
(b) Interlocutory Orders
(c) Final Judgment Closing Proceeding
(d) Appeals

Rule 35. ORDER FOR SPECIFIC ACTS; VESTING TITLE

Rule 36. RELIEF FROM ORDER


(a) Clerical Mistakes
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud, Etc.

X. MODEL FORMS

Rule 37. AVAILABILITY

Rule 38. USE OF FORMS

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XI. ATTORNEYS' AND FIDUCIARY'S FEES

Rule 39. STATUTORY FEES; TIME OF PAYMENT

Rule 40. NON-STATUTORY AND EXTRAORDINARY FEES


(a) Amount
(b) Timing of Payment

Rule 41. EVIDENCE AND NOTICE

XII. MISCELLANEOUS PROVISIONS

Rule 42. CONFLICTS OF INTEREST


(a) Fiduciary as Attorney's Client
(b) Relationship to Beneficiaries
(c) Officer of Court
(d) Sanctions

Rule 43. COMMUNICATIONS WITH THE COURT; ADVICE

Rule 44. WITHDRAWAL OF COUNSEL

Rule 45. EXPEDITION OF COURT BUSINESS


(a) Required Notice
(b) Effect of Failure to Appear

Rule 46. BOND


(a) Procedures for Posting
(b) Payment of Costs
(c) Proceeding Against Surety

Rule 47. RESERVED

Rule 48. DELEGATION OF POWERS TO CLERK AND DEPUTY CLERKS


(a) Permissible Delegation
(b) Entry of Orders
(c) Vacation and Effect of Orders
(d) Updating of Letters

Rule 49. RESERVED

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PART B. PROBATE PROCEEDINGS

I. COMMENCEMENT

Rule 50. INITIAL PLEADINGS


(a) Case Numbers
(b) Identification of Beneficiaries and Heirs
(c) Informal Probate Information Sheet

II. NOTICE

Rule 51. INITIAL REQUIREMENTS

Rule 52. RESERVED

Rule 53. EFFECT OF WAIVERS AND JOINDERS

Rule 54. AT FINAL ACCOUNTING

Rule 55. RESERVED

III. SPECIAL ADMINISTRATION

Rule 56. WHEN APPROPRIATE

Rule 57. TERMINATION

Rule 58. ACCOUNTING

Rule 59. COMPENSATION

IV. INVENTORIES

Rule 60. FORMAT AND CONTENT

Rule 61. AMENDMENT

Rule 62. RESERVED

V. CREDITORS' CLAIMS

Rule 63. PRESENTING CLAIMS

Rule 64. CLOSING ESTATES; ARRANGEMENTS

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VI. SALE OF REAL PROPERTY

Rule 65. PRE-EXISTING SALES CONTRACTS; CHANGES

Rule 66. AUTHORIZATION TO OFFER REAL PROPERTY FOR SALE

Rule 67. CONSENT TO SALE

Rule 68. SALES CONTRACTS

Rule 69. NOTICE


(a) Method
(b) Newspaper Publication
(c) Failure of Notice

Rule 70. BIDS AND OVERBIDS


(a) When Due; Deposits
(b) Overbids

Rule 71. FAILURE TO COMPLETE SALE

Rule 72. BROKERS', ATTORNEYS', AND PERSONAL REPRESENTATIVE'S FEES


AND COMMISSIONS
(a) Personal Representatives and Attorney's Fees
(b) Broker's Commissions

VII. DETERMINATION OF HEIRS

Rule 73. PROCEDURE FOR DETERMINATION OF HEIRS

VIII. DEPOSIT OF WILLS

Rule 74. DEPOSIT OF WILL WITHOUT PROBATE


(a) Method of Deposit
(b) Assignment of Case Number
(c) Access to Deposited Will
(d) Maintenance of Original Will; Time Limits

Rule 75. TRANSFER OF DEPOSITED WILL

IX. ANCILLARY PROCEEDINGS

Rule 76. FILING OF DOMICILIARY DOCUMENTS

Rule 77. ANCILLARY INVENTORY

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Rule 78. RESERVED

Rule 79. NOTICE IN ANCILLARY PROCEEDINGS

Rule 80. ACKNOWLEDGING DOMICILIARY FIDUCIARY OR BENEFICIARY


AUTHORITY TO SIGN PROPERTY DOCUMENTS

X. FLAG SHEETS

Rule 81. FLAG SHEETS REQUIRED

XI. CONCLUSION OF PROCEEDINGS

Rule 82. RESERVED

Rule 83. INTERIM ACCOUNTING

Rule 84. SUPPLEMENTAL ACCOUNTING; FINAL RECEIPTS

Rule 85. DISTRIBUTION TO MISSING PERSONS

Rule 86. NEWLY DISCOVERED ASSETS

XII. MISCELLANEOUS

Rule 87. SUBMISSION TO JURISDICTION BY NON-RESIDENT PERSONAL


REPRESENTATIVE
(a) Manner and Effect of Submission
(b) Procedure for Substituted Service

Rule 88. DEMAND FOR NOTICE


(a) Preparation and Filing
(b) Duty to Investigate: Demandant
(c) Duty to Investigate: Petitioner
(d) Validity of Demand

Rule 89. TERMINATION OF POSSESSION OF REAL PROPERTY

Rule 90. STATUTORY ALLOWANCES


(a) Homestead Allowance and Exempt Property
(b) Family Allowance
(c) Elective Share

Rule 91. AFFIDAVITS OF COLLECTION

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Rule 92. TRANSFER OF TYPE OF PROCEEDING

Rule 93. PROBATE OF WILL WITHOUT ADMINISTRATION OF ASSETS

Rule 94. DISCLAIMERS

Rule 95. ACKNOWLEDGEMENT OF AUTHORITY


(a) Application
(b) Acknowledgment

Rule 96-99 RESERVED

PART C. CONSERVATORSHIP AND GUARDIANSHIP PROCEEDINGS

I. COMMENCEMENT OF PROCEEDING

Rule 100. CASE NUMBERS

Rule 101. PERSONAL INJURY RECOVERIES

Rule 102. PHYSICIAN'S LETTERS


(a) Conservatorship
(b) Guardianship

II. HEARINGS

Rule 103. FLAG SHEETS

III. NOTICE

Rule 104. TO WHOM


(a) Conservatorship
(b) Guardianship

Rule 104.1. DEMAND FOR NOTICE


(a) Preparation and Filing
(b) Duty to Investigate: Demandant
(c) Duty to Investigate: Petitioner
(d) Validity of Demand

Rule 105. METHODS OF PROVIDING NOTICE


(a) Generally
(b) Personal Service

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Rule 106. AFTER APPOINTMENT PROCEEDINGS


(a) Proceedings Commenced Prior to January 1, 2005
(b) Proceedings Commenced After January 1, 2005

IV. FINANCIAL ARRANGEMENTS

Rule 107. DEPOSIT AND INVESTMENT OF FUNDS


(a) Bond
(b) Reduction or Elimination of Bond Requirement
(c) Deposit of Funds
(d) Investment of Assets
(e) Setting Forth Plan in Petition

Rule 108. BUDGETS

Rule 109. NEED FOR ADDITIONAL FUNDS

Rule 110. CONVERSION TO TRUST, FUNDING TRUST


(a) Funding a Pre-Existing Trust
(b) Converting Conservatorship into a Newly-Created Trust

Rule 111. CONVERSION TO CUSTODIAL ARRANGEMENT

Rule 112. CONVERSION TO SMALL CONSERVATORSHIP

V. KOKUA KANAWAI

Rule 113. ROLE AND AUTHORITY OF KOKUA KANAWAI

Rule 113.1 CONFIDENTIALITY OF RECORDS

VI. SALE OF REAL PROPERTY

Rule 114. PROBATE RULES APPLICABLE

VII. ACCOUNTINGS

Rule 115. V.A. CONSERVATORSHIP


(a) Definition
(b) Approval of Accountings
(c) Certificate of Audit
(d) No Master, Guardian Ad Litem, or Kokua Kanawai

Rule 116. REQUIRED ELEMENTS

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VIII. FEES

Rule 117. CONSERVATOR’S FEES: BASIS AND AMOUNT

IX. TERMINATION OF PROCEEDINGS

Rule 118. SPECIAL CONSERVATORSHIPS AND PROTECTIVE ARRANGEMENTS

Rule 119. EX PARTE TERMINATION OF PROCEEDINGS

Rule 120 ACKNOWLEDGMENT OF CONSERVATOR’S AUTHORITY


(a) Application
(b) Acknowledgment

Rule 121-124 RESERVED

PART D. TRUST PROCEEDINGS

I. GENERAL PROVISIONS

Rule 125. CASE NUMBER ASSIGNMENT

II. COMMENCEMENT OF PROCEEDINGS

Rule 126. TRUST PROCEEDINGS


(a) Petition
(b) Vesting Orders
(c) Instructions
(d) Approval of Accountings
(e) Distribution of Assets to Missing Beneficiaries

III. TRUST REGISTRATION

Rule 127. TRUST REGISTRATION

Rule 128. RELEASE OF REGISTRATION

IV. TRUSTEE FEES

Rule 129. RESERVED

Rule 130. EXTRAORDINARY FEES

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Rule 131-139. RESERVED

PART E. NO-FAULT LEGAL REPRESENTATIVE PROCEEDINGS

I. COMMENCEMENT OF ACTION

Rule 140. PETITION

Rule 141. CASE NUMBER

Rule 142. WAIVER OF NOTICE AND HEARING

II. TERMINATION OF ACTION

Rule 143. ACCOUNTING AND DISCHARGE

III. WHEN PROBATE PROCEEDINGS ARE PENDING

Rule 144. PERSONAL REPRESENTATIVE TO ACT

Rule 145-149. RESERVED

PART F. DETERMINATION OF DEATH PROCEEDINGS

I. COMMENCEMENT OF ACTION

Rule 150. PETITION

Rule 151. CASE NUMBER AND CAPTION

II. NOTICE

Rule 152. METHOD OF PROVIDING NOTICE

III. EVIDENCE

Rule 153. RESERVED

IV. ORDER

Rule 154. CONTENT OF ORDER

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Exhibit A. MEDIATION RULES FOR PROBATE, TRUST, CONSERVATORSHIP, AND


GUARDIANSHIP (MEDIATION RULES)

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HAWAI#I PROBATE RULES Rule 1

HAWAI#I PROBATE RULES subject to these rules. These rules also do


not cover issues relating to a Durable Power
PART A. GENERAL RULES for Health Care Decisions, which is within
the jurisdiction of the family court.
I. SCOPE OF RULES - Chapter 555 [Employee's Trusts],
because that chapter is limited in its scope
Rule 1. SCOPE OF RULES. to definitional sections and a specific waiver
These rules govern the procedure in the circuit of the Rule Against Perpetuities.
courts of the State of Hawai‘i in all probate, - Chapter 558 [Land Trusts], because
conservatorship, guardianship, trust, legal that chapter does not establish a true
representation for no fault benefits, and fiduciary relationship, but is more in the
determination of death proceedings, and more order of a conveyancing and title-holding
particularly proceedings arising under HRS Chapters statute, and therefore should fall within the
531 [Probate: Jurisdiction and Procedure], 532 Hawai‘i Rules of Civil Procedure.
[Descent of Property], 533 [Dower and Curtesy], 535 - Parts 2 and 6 of Article V, Chapter
[Specific Performance of Deceased's Contracts to 560, because those sections fall within the
Convey Real Estate], 551 [Guardians and Wards], jurisdiction of the family court. HRS
551A [Office of the Public Guardian], 551D § 560:5-106(3) allows consolidation of
[Uniform Durable Power of Attorney Act] but only protective and guardianship proceedings
to the extent of issues arising from or between the relating to the same person.
attorney in fact and an incapacitated or deceased Note that these rules clearly apply to
principal, 553A [Uniform Transfers to Minors Act], trust proceedings. Prior to these rules, some
554 [Trusts and Trustees; Accounts], 554A [Uniform practitioners argued that a trust proceeding
Trustees' Powers Act], 554B [Uniform Custodial was a civil action requiring a complaint,
Trust Act], 554C [Uniform Prudent Investor Act], summons, and answer. In 1995, these rules
556 [Uniform Fiduciaries Act], 557A [Uniform brought trust proceedings in line with the
Principal and Income Act], and 560 [Uniform procedural rules applicable to probates and
Probate Code] except Article V, Parts 2 and 6, and what was then known as guardianship of the
Section 603-21.6 [Probate Jurisdiction]. They shall property.
be construed to secure the just, speedy, and (Amended November 12, 1997, effective
inexpensive determination of every proceeding. December 15, 1997; further amended April 28, 2006,
effective July 1, 2006.)
COMMENTARY:
These rules encompass all matters
arising under Titles 29, 30, and 30A of the
Hawai‘i Revised Statutes, with five
exceptions:
- Chapter 551A [Office of the Public
Guardian] comes within the scope of the
circuit court and the family court.
- Disputes involving powers of attorney
where the issues do not relate to the
fiduciary relationship between the principal
and agent or to the effect of the disability or
death of the principal or agent. Disputes
involving third parties arising from
transactions in which a power of attorney
was used shall, except in cases described
above, be considered civil actions not

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Rule 2 HAWAI#I PROBATE RULES

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

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HAWAI#I PROBATE RULES Rule 3

(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.

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Rule 3 HAWAI#I PROBATE RULES

(e) Required Notice; Effect of Failure to Rule 4. FORMAT OF DOCUMENTS.


Respond. An interested person who opposes a (a) Compliance with Rules of the Circuit
petition or a master’s, guardian ad litem’s, or Kokua Courts. The form of pleadings, affidavits, and
Kanawai’s report or intends to support a response or memoranda, and method of filing, shall comply with
objection shall file the response or objection with the Rules 2 and 3 of the Rules of the Circuit Courts.
court and serve it on all counsel or parties who have
made an appearance in the proceeding. Failure to COMMENTARY:
respond within the time required under Rule 10(c) The Rules of the Circuit Courts
may be cause for determining that a party waives technically apply to probate proceedings at
objection to the petition. this time, but those rules are primarily
focused on the conduct of litigation, and so
COMMENTARY: should be made inapplicable. Circuit Court
This rule clearly establishes that an Rule 2, having to do with the mechanics of
interested person cannot sit on his or her filing documents, and Rule 3, having to do
rights; all interested persons must let their with the actual format of pleadings, are
positions be known, or they will be deemed incorporated by reference to achieve
to have waived any objections to the consistency in the filing of documents
granting of the petition. The last sentence of received by the court, and to eliminate the
the rule uses the term “may” because there need for documents receiving clerks to check
may be circumstances in which an interested more than one set of rules for filing
person does not receive notice of the petition requirements.
within a sufficient time to respond, and such
persons should be allowed to come in after (b) Stapling and Punching of Documents. All
the hearing and show why they should be original documents shall be perforated at the top with
heard. a standard two-hole punch. Documents of 10 pages
or less shall be secured by a single staple in the upper
(f) Amendment and Supplementation of left corner of the document. Documents of more than
Pleadings. A party may amend or supplement a 10 pages shall not be stapled, but shall be fastened
pleading to reflect a change in facts after the time of with paper fasteners through the two-hole punch
filing of the original pleading, additional relevant perforations.
facts or law not stated in the prior pleading, or to
reflect the facts as established on the record. Any COMMENTARY:
amendment or supplement relates back to the date of This rule is of minimal burden to the
the original pleading. All amendments and attorneys, but makes document handling less
supplements shall comply with the filing burdensome on the court staff.
requirements of Rule 10(c).
(c) Size of Paper, Folding Oversized
COMMENTARY: Documents to Fit. All documents presented to the
Generally in probate, amended court for filing shall not exceed 81/2 inches by 11
pleadings to reflect newly-discovered facts, inches in size. Any exhibits, documents, or wills that
changes in circumstance, or changes in exceed those measurements shall be folded in such a
position are allowed. This rule continues way that come within these restrictions, and any
that practice, as long as the new pleading is photocopies of any such documents shall likewise be
filed within the time constraints of Rule folded or reproduced on letter-size paper in such a
10(c). manner that the entire contents of the original
(Amended November 12, 1997, effective document are visible and legible on the copy.
December 15, 1997; further amended May 17, 2004,
effective July 1, 2004; further amended April 28,
2006, effective July 1, 2006.)

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HAWAI#I PROBATE RULES Rule 6

COMMENTARY: anticipated that the registrar will be


This complies with current court policy, processing a large number of informal
but expands the reference to copies to allow applications filed by pro se applicants, it is
documents to be reduced through a important to provide an easy mechanism for
photocopying process to fit on a letter-sized the Registrar to determine that the applicant
paper, so long as the copy is complete and is who he or she claims to be. A notarized
legible. signature will give the Registrar this proof
without adding any significant cost to the
(d) Notation of Hearing Time. Every pleading probate process.
filed for which a hearing date has been previously
assigned shall include under the case number on the (b) Signing by Attorneys. Except as required by
first page of the pleading a notation of the date, time, statute or by rule, any pleading, memorandum,
and anticipated presiding judge for the hearing. stipulation, or other paper of a party represented by
an attorney shall be signed by the attorney of record
COMMENTARY: in the attorney's individual name. The signature of an
This rule will assist the court in attorney constitutes a certificate by the attorney that
processing documents, particularly when the attorney has read the submittal; that to the best of
courtesy copies have been delivered to the the attorney's knowledge, information, and belief,
judge's chambers. there is good ground to support it; and that it is not
interposed for delay. If a submittal is not signed or is
Rule 5. SIGNING OF PLEADINGS. signed with intent to defeat the purpose of this rule,
(a) Verification of Pleadings; Affidavits. All it may be stricken as sham and false and the
pleadings (other than those signed by a party's proceeding may proceed as though the submittal had
attorney) shall include a statement at the end and not been served. For willful violation of this rule, an
before the signature of the person presenting the attorney may be subjected to an appropriate sanction.
pleading to the effect that the person understands that Similar action may be taken if scandalous or indecent
the document is deemed to include an oath, matter is inserted. The attorney's name shall be typed
affirmation, or statement to the effect that its or legibly printed directly below the attorney's
representations are true as far as the person executing signature.
or filing it knows or is informed, and that penalties
for perjury may follow deliberate falsification. Such COMMENTARY:
a statement shall be accepted in lieu of an affidavit as This clarifies the role of the attorney in
to the facts stated in the pleading. The signature of an the preparation and presentation of
applicant in informal proceedings shall be notarized. documents. It is the Probate Rules version of
If a pleading requires consideration of facts not Civil Procedural Rule 11.
appearing of record or verified as provided above, it (Amended November 12, 1997, effective
shall be supported by affidavit, signed by the person December 15, 1997.)
having knowledge of the facts and competent to
testify. An attorney may submit a declaration in lieu Rule 6. STIPULATIONS.
of an affidavit to support facts outside of the record. (a) Presentation. Unless made in open court, all
stipulations shall be in writing, signed by the parties
COMMENTARY: or their attorneys, clearly identify all parties not
This rule continues to require participating in the stipulation, and be filed with the
verification of pleadings in both informal court.
and formal proceedings. However, (b) Format for Court Approval. An order
applicants in informal proceedings to based upon a stipulation shall be sufficient if the
probate a will, determine intestacy, or words "Approved and so ordered" are endorsed at the
appoint a personal representative must also end of the stipulation and signed by the judge.
have their signatures notarized. Because it is

(Release: 06/06) HPR--5


Rule 6 HAWAI#I PROBATE RULES

COMMENTARY: Rule 8. PROOF OF SERVICE.


This rule would conform probate court A party required to prove service shall file (a) a
stipulations to common practice. The written acknowledgment of service by the party or
statement as to parties affected and not attorney served, or (b) an affidavit by the person
affected by the stipulation will speed up the making the service, together with original signed
processing of stipulations, as the court staff return receipts, or (c) a certificate of service by the
will not have to confirm that all parties have attorney, or (d) any other proof satisfactory to the
signed the stipulation. The attorneys do not court, unless otherwise provided by law or by these
have to sign the stipulation, but may do so in rules. The filing of a postal return receipt, receipt for
lieu of the signature of the attorney's client. notice, waiver of notice, or joinder, signed by the
A stipulation is not necessarily signed or addressee or the parent of a minor addressee, is
approved by the judge, but Rule 6(b) prima facie proof of service on the person who
provides guidance as the proper format to signed such document. A party who is prejudiced by
use for court approval. failure to receive due notice or to be served, or who
is prejudiced by reason that service was made by
mail or publication, may petition the court for
III. NOTICE; TIME appropriate relief.

Rule 7. METHODS OF SERVING NOTICE. COMMENTARY:


Except as otherwise specifically provided by The statutes are silent as to the proper
these rules, statutes, or court order, personal service method of making proof of service. This rule
of notice may be made by means of hand delivery or allows receipts to be filed, an affidavit of
first-class mailing to the person at the person's last service to be filed, or any other method to be
known address, by mailing or delivering a copy of used that establishes on the record that
any document to an attorney who makes an notice was given and received. A proof of
appearance for a person in the proceeding, by service service relying on postal return receipts
of process and summons, by publication, or by any must attach copies of the return receipts.
other method reasonably calculated to give notice to
interested persons. Service of notice on a guardian ad Rule 9. PUBLICATION OF NOTICE.
litem shall be deemed to be equivalent to service on (a) Permissible Publications. Whenever
the persons represented by the guardian ad litem. publication of notice is required, it shall be made in
a newspaper of general circulation within the judicial
COMMENTARY: circuit or district where the proceeding is being
HRS § 560:1-401 identifies various brought.
methods of serving notice. HRS § 560:5-
309(b) requires notice in a conservatorship COMMENTARY:
to be "served personally" on the respondent. There have been and continue to be
Service of notice by a sheriff or other official abuses in publication of notice. A clear
is not necessary if a more informal process statement of the permissible publications
can achieve the same result. would eliminate possible constitutional
The rule also clarifies that service of challenges and uncertainty. The committee
notice on a guardian ad litem is sufficient to decided against endorsing any specific
cover notice on the individuals represented newspapers because of concern that they
by that guardian ad litem, and that may not have sufficient circulation to be
additional notice to the individuals is considered of general circulation in the
unnecessary. judicial circuit. Publication in the Honolulu
(Commentary amended April 28, 2006, effective Advertiser or the Honolulu Star-Bulletin
July 1, 2006.) would be presumed to provide adequate
notice in all judicial circuits of this state.

HPR--6 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 10

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

(Release: 06/06) HPR--7


Rule 10 HAWAI#I PROBATE RULES

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

HPR--8 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 10

provided because most interested persons in


probate, guardianship and trust proceedings
are individuals who are usually not
represented by counsel and who often live
out of state. In addition, many proceedings
have mandatory notice provisions, which
often take more than 20 days to satisfy. The
rule outlines the response requirements [Next page is HPR--9.]
when a master or Kokua Kanawai is
appointed and is intended to provide all
parties with special rules for filing
responses and objections in a manner that
will allow cases to proceed efficiently.
Attempts should be made to serve all other
interested parties as well, but the nature of
probate and trust proceedings, with
p o t e n t i a l l y m a n y b e n e f i c ia r i e s
geographically dispersed, makes a
requirement of service on everyone prior to
the hearing impractical.
When a hearing is continued from the
originally scheduled date, pleadings are due
within the original time unless the court by
order permits an expansion of time, to be
measured by reference to the date to which
the hearing is continued.
The court is granted the power to
shorten any of the time requirements for
good cause, such as to facilitate the closing
of a sale of property, to distribute property
or to settle a litigated or negotiated claim.

(d) Additional Time After Service by Mail.


Whenever a person has the right or is required to act
within a prescribed period after the service of a
notice or other paper upon the person and the notice
or paper is served upon the person by mail, two days
shall be added to the prescribed period.

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.)

(Release: 06/06) HPR–8A


HAWAI#I PROBATE RULES Rule 13

IV. HEARINGS justice, judicial efficiency, or fairness, a continuance


will permit all parties to the proceeding to be
Rule 11. TELEPHONE CONFERENCE properly and fully represented. If a continuance is
CALL HEARINGS. imposed by the court, the court shall notify counsel
(a) Permissibility. The court, at its discretion, for the petitioner and instruct counsel to submit an
may allow a petition or other pleadings to be heard amended notice of hearing, with the new hearing
by telephone conference call. date.
(b) Arranging Conference Call. The party who
requests the telephone conference call shall be COMMENTARY:
responsible for arranging the telephone conference Continuances by the court are rare;
call with all parties and the telephone conference call usually they are only imposed when a flag
operator and ensuring that the call is arranged and sheet has not been presented to the court on
ready for court participation at the time appointed for time; where other documents (such as proof
the hearing. of service) are missing, the hearing is held
(c) Procedure. Prior to the start of the and the documentary deficiency brought to
conference call, the clerk shall call the case in the the attorney's attention, giving the attorney
courtroom and outside the courtroom or by public the opportunity to point out if a document
address system and direct anyone appearing for the has in fact been filed but not delivered to the
hearing to the appropriate location for the hearing. file in time. Requiring that flag sheets be
filed prior to the hearing should help
COMMENTARY: eliminate a portion of those continuances.
These rules formalize the procedures Sometimes the deficiency is not one of the
already in use in the Second, Third, and attorney's or party's own making; a
Fifth Circuits, and make them available to document may have been misplaced or
the First Circuit, in the court's discretion. misrouted at the court. Parties may have
Their goal is to decrease costs of traveled from off island or taken off time
proceedings and improve efficiency by from work or school to attend the hearing.
avoiding having parties and attorneys from By putting a brief explanation of the reason
other islands, or remote areas of an island, for continuance on the court calendar, the
fly to the island where court is in session or attorney can either catch an error or rectify
drive long distances for simple matters. The an omission in time to get the matter
person who requested the conference call reinstated at the original hearing time. This
shall be responsible for all arrangements would improve the efficiency of the judicial
with a conference operator and the parties system, and help alleviate the congested
and attorneys to ensure that the call is made calendar, by eliminating having some
to the court with all parties on line at the matters continued over to future hearing
appropriate time. dates, which often prevents new matters
from being scheduled for those future dates.
Rule 12. RESERVED. This rule would also allow the court to
continue the hearing when justice demands;
Rule 13. CONTINUANCES. for example, when an heir or beneficiary
(a) By the Court. The court in its discretion appears without counsel and may want to
may continue any hearing to a later date and time object to the petition.
(1) when it appears from the record that required
filings, notice, or procedures have not been
completed prior to the hearing, (2) when a report of
a court-appointed master, guardian ad litem, Kokua
Kanawai, or appraiser cannot or will not be ready by
the hearing date, or (3) when in the interest of

(Release: 06/04) HPR--9


Rule 13 HAWAI#I PROBATE RULES

(b) By Request of the Parties. Any party, judicial efficiency by eliminating an


master, or guardian ad litem requesting a continuance incentive to continue. Parties would have to
shall file a petition to continue the hearing date, have their cases prepared for the original
accompanied by an affidavit of counsel clearly hearing date and could not use the
setting forth the basis for continuance, and said continuance delay to improve their
petition for continuance shall be heard on the positions. This rule also clarifies the
original hearing date, unless otherwise ordered by the situation when a specific deadline is set by
court. statute, rule, or stipulation, such as the
The party obtaining a continuance shall prepare requirement that overbids in a confirmation
and submit to the court an Amended Order Setting of sale proceeding be delivered to the court
Time and Place of Hearing and shall serve the prior to the time set for the hearing. A
file-marked Amended Order on all parties who have continuance for failure to file a flag sheet in
appeared in the matter. Counsel may request a time would not give other prospective
specific hearing date by way of cover letter or bidders additional time in which to submit
transmittal memorandum attached to the Amended bids.
Order, but if the court has not yet set the time and
place of hearing, counsel shall submit a proposed Rule 14. CONSOLIDATION OF
order with the hearing date and time in blank. PROCEEDINGS.
The court may upon petition of any party order
COMMENTARY: that proceedings involving essentially the same
Continuances by the parties are parties be consolidated for hearing; and it may make
confusing, and there are no standard such orders concerning proceedings therein as may
procedures at this time. This rule provides tend to avoid unnecessary costs or delays. Any
guidance and certainty to the system. Any petition to consolidate must be filed in all
party may seek a continuance, but that proceedings sought to be consolidated.
request, unless otherwise ordered by the
court, will be heard at the original time set COMMENTARY:
for the hearing. By using the original Under prior law, the family court had
hearing date to hear any petition for exclusive jurisdiction over all guardianships
continuance, the court may proceed with the of the persons. Under the new guardianship
original petition if the continuance is not statute, specifically HRS § 560:5-106, the
granted. This rule also clarifies that the probate court now has concurrent
person obtaining the continuance is to jurisdiction over guardianships of adult
prepare, file, and serve an amended order persons (but not minors) where there is also
setting time and place of hearing, although a conservatorship proceeding.
the order is to be presented to the court with New Rule 100(b) provides that a party
the date and time left blank for the court to may file a single petition in probate court to
fill in. initiate a guardianship of an adult person
and a conservatorship of the same adult
(c) Effect of Continuance on Response Time. person. It is anticipated that an action to
Unless otherwise ordered by the court, a continuance initiate a guardianship for an adult person
shall not enlarge the time in which to file responsive but not a conservatorship for the same adult
pleadings, memoranda, or other documents other person will be filed in family court and that
than procedural documents. an action to initiate a conservatorship for an
adult person but not a guardianship for the
COMMENTARY: same adult person will be filed in probate
This rule would eliminate using a court. If separate proceedings are filed (or
continuance as a means of buying time to for those matters filed before January 1,
respond to a pleading and would increase 2005 for guardianship of the person for an

HPR--10 (Release: 03/05)


HAWAI#I PROBATE RULES Rule 15

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

(Release: 03/05) HPR--11


Rule 15 HAWAI#I PROBATE RULES

(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.

Rule 17. WITHDRAWAL OF PLEADING.


(a) Procedure. A party may withdraw a petition
or objection that has been scheduled for hearing by
giving immediate notice of the withdrawal to the
court and requesting that the hearing be stricken from
the calendar. The party shall immediately contact all
other counsel who appeared in the matter to notify
them that the hearing is stricken. Within 72 hours of

HPR--12 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 20

Rule 18. RULES OF EVIDENCE. Rule 20. DISPOSITION OF CONTESTED


The Hawai#i Rules of Evidence, HRS Chapter MATTERS.
626, shall apply to all proceedings. However, the (a) Assignment. The court by written order may
court shall interpret and apply the rules broadly and retain a contested matter on the regular probate
liberally in the interest of fairness and justice and calendar or may assign the contested matter to the
with the goal of judicial efficiency. civil trials calendar of the circuit 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

(Release: 06/06) HPR--13


Rule 20 HAWAI#I PROBATE RULES

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

HPR--14 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 23

Rule 21. RESERVED. (d) Contempt. Failure by any person without


adequate excuse to obey a subpoena upon that person
Rule 22. SUBPOENA. may be deemed a contempt of the court from which
(a) For Attendance of Witnesses; Form; the subpoena issued.
Issuance. Every subpoena shall be issued by the
clerk of the circuit court of the circuit in which the COMMENTARY:
proceeding is pending under the seal of the court, These rules are taken verbatim from
shall state the name of the court and the title of the HRCP 45, except that HRCP 45(d) is
proceeding, and shall command each person to whom excluded, it being within the power of the
it is directed to attend and give testimony at a time court in a contested matter to adopt that rule
and place therein specified. Upon payment of all (relating to subpoenas for depositions) if the
required fees the clerk shall issue a subpoena, or a court so desires. As written, these rules
subpoena for the production of documentary would apply only to subpoenas for testimony
evidence, signed and sealed but otherwise in blank, at a hearing. They greatly expand the ability
to a party requesting it, who shall fill it in before of the probate court to obtain witnesses and
service. documents that may be necessary to the full
(b) For Production of Documentary Evidence. and fair evaluation of the matter.
A subpoena may also command the person to whom
it is directed to produce the books, papers,
documents, or tangible things designated therein; but VI. EX PARTE PROCEEDINGS
the court, upon petition made promptly and in any
event at or before the time specified in the subpoena Rule 23. MATTERS WHEN EX PARTE
for compliance therewith, may (1) quash or modify PROCEEDINGS APPROPRIATE.
the subpoena if it is unreasonable and oppressive or Proceedings may be conducted on an ex parte
(2) condition denial of the petition upon the basis (without notice or hearing) when:
advancement by the person in whose behalf the (a) All interested parties who are entitled by
subpoena is issued of the reasonable cost of statute to notice of the petition join in the petition; or
producing the books, papers, documents, or tangible (b) An emergency exists such that delay for a
things. hearing would cause irreparable harm and the basis
(c) Service. A subpoena may be served at any for the emergency is supported by affidavit; or
place within the state. A subpoena may be served: (1) (c) There is no controversy and the relief
anywhere in the state by the sheriff or the sheriff's requested is automatic under statute or rule; or
deputy, or by any other person who is not a party and (d) Other situations exist in the court's discretion
is not less than 18 years of age, or (2) in any county that warrant action without notice or hearing.
by the chief of police or the chief's duly authorized The party presenting a petition under paragraph
subordinate. Service of a subpoena upon a person (b) of this Rule 23 requiring immediate action of the
named therein shall be made by delivering a copy court shall title the petition "Emergency Ex Parte
thereof to such person and by tendering to him or her Petition for . . ." to distinguish it from any other form
the fees for one day's attendance and the mileage of ex parte petition.
allowed by law. When the subpoena is issued on
behalf of the state, or an officer or agency of the COMMENTARY:
state, fees and mileage need not be tendered. This rule establishes, for the guidance of
counsel, the situations in which ex parte
proceedings are appropriate.
Under paragraph (a) of this Rule 23, a
petition may be granted when all persons
entitled to notice of the petition join in the
petition; this may differ from persons
described as "interested persons" under

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Rule 23 HAWAI#I PROBATE RULES

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

HPR--16 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 26

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

(Release: 06/06) HPR--17


Rule 26 HAWAI#I PROBATE RULES

in challenges raised because a beneficiary always requiring a master in a charitable


cannot understand all of the detail. trust accounting.
Of great concern to the First Circuit
Court and the committee in 1991 was
decreasing the amount of paper circulated VIII. MASTERS AND GUARDIANS
with an accounting. A suggestion was that AD LITEM
the fiduciary file with the court only the
summaries of (1)-(3) and any auditor's Rule 28. APPOINTMENT.
reports under (5), retaining the detailed (a) Master. The court may appoint a master to
accounting and giving it only to the master, review any petition or dispute before the court and to
attorney general, and any other interested report the recommendations of the master to the
party who requested it. Masters and the court. The master shall serve as a representative of
attorney general's office objected to any the court and shall be a person who has no conflict of
accounting system that did not provide a full interest with any party or issue in the proceeding.
and complete copy of the detailed (b) Guardian Ad Litem. The court may appoint
accounting to them; the trust companies a guardian ad litem for one or more minor, unborn,
objected to not providing the detailed unascertained, or incompetent persons not otherwise
accounting to the court, because the trust represented in an action and may make such other
companies rely on the court records for order as it deems proper for the protection of a
storage and do not save all detailed minor, unborn, unascertained, or incompetent person.
accountings in their own records. No The guardian ad litem shall represent the interests of
consensus was reached by the committee, the person or persons for whom the guardian ad litem
therefore, on the content of the accounting is appointed. Where the interests of different classes
filed with the court and presented to of unrepresented beneficiaries differ, the court may
beneficiaries. appoint a separate guardian ad litem to represent
The requirement for a copy of the each class of interests.
controlling trust documents once every five (c) Order of Appointment. The petitioner shall
calendar years is adopted in recognition that prepare and present to the court in blank an order
trust accountings can sometimes be quite appointing master or guardian ad litem, as applicable,
lengthy and over time fill many volumes of for charitable trust accountings, petitions for
files. By having copies of the controlling instructions, and actions involving non-charitable
documents filed on a regular basis, the court trusts or estates in which there are minor, unborn, or
and interested persons will not have to dig unascertained beneficiaries.
back too deeply in the files to locate the (d) Notice to Official. When a master or
controlling documents. guardian ad litem is appointed by the court with
(Amended April 28, 2006, effective July 1, 2006.) respect to any petition, the petitioner shall give
notice of appointment and copies of all relevant
Rule 27. REFERRAL TO MASTER. pleadings to the master or guardian ad litem within 5
All charitable trust accountings shall be referred days of appointment. Thereafter, all parties shall
to a master appointed by the court for review, serve copies of all pleadings filed in the proceeding
analysis, and report to the court. In the event of a on the master or guardian ad litem until the
dispute among beneficiaries of a private trust or appointment is terminated.
estate, the court may appoint a master for the same (e) Termination of Appointment. The
purposes. appointment of a master or guardian ad litem
COMMENTARY: automatically terminates upon the entry of an order
This rule echoes current court practice. or judgment on the issues for which the master or the
It allows the court discretion in appointing guardian ad litem is appointed. A guardian ad litem
a master for private trusts and estates, may, with the approval of the court, appeal an order
depending upon the circumstances, while or judgment of the court and pursue such appeal on

HPR--18 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 31

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

(Release: 06/06) HPR--19


Rule 31 HAWAI#I PROBATE RULES

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.

HPR--20 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 36

(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.)

COMMENTARY: Rule 35. ORDER FOR SPECIFIC ACTS;


Probate practice has never had decrees, VESTING TITLE.
judgments, and other assorted forms of If an order directs a party to execute a
decision that are referred to in the rules of conveyance of land or to deliver deeds or other
civil procedure. Therefore, it has been documents or to perform any other specific act and
unclear when a probate order is final for the party does not comply within the time specified,
appeal purposes, other than a formal testacy the court may direct the act to be done at the cost of
order, which is specifically appealable. HRS such party by some other person appointed by the
§ 560:3-412. The committee recommended a court, which will have the same effect as if done by
rule that would have conformed to the the party. On petition of the party entitled to
practice of allowing dispositive orders to be performance, the clerk shall issue a writ of
appealed, rather than waiting for the final attachment or sequestration against the property of
order settling and closing the estate, in the disobedient party to compel obedience to the
effect, eliminating interlocutory orders. Rule order. The court may also in proper cases adjudge the
34 is written to conform probate practice to party in contempt. If real or personal property is
the policy against piecemeal appeals, see, within the state, the court in lieu of directing a
e.g., Jenkins v. Cades Schutte Fleming & conveyance thereof may enter an order divesting the
Wright, 76 Haw. 115, 869 P.2d 1334 (1994), title of any party and vesting it in others and such
to bring certainty to the timing of when and order has the effect of a conveyance executed in due
how an appeal can be taken, and to comply form of law. When any order is for the delivery of
with the provisions of HRS § 641-1. possession, the party in whose favor it is entered is
Original Rule 34 was misread to require entitled to a writ of execution or assistance upon
all probate orders to be reduced to application to the clerk.
judgment, even if an immediate appeal was
not contemplated. This revised rule clarifies COMMENTARY:
that only certain probate court orders must This conforms to the Rules of Civil
be reduced to judgment and are thereafter Procedure.
immediately appealable when an appeal is
allowed by statute. Those orders include: (1)
formal testacy orders and orders
determining that the decedent left no valid
will and determining heirs, which are final
and subject to immediate appeal under HRS
§ 560:3-412; (2) orders establishing
conservatorships under HRS § 560:5-401;
(3) orders establishing protective
arrangements under HRS § 560:5-412; and

(Release: 06/06) HPR--21


Rule 36 HAWAI#I PROBATE RULES

Rule 36. RELIEF FROM ORDER. X. MODEL FORMS


(a) Clerical Mistakes. The court may correct
clerical mistakes in orders or other parts of the record Rule 37. AVAILABILITY.
and errors arising from oversight or omission at any The courts of the various circuits, acting
time of its own initiative or on the petition of any unanimously through their administrative judges,
interested person and after such notice, if any, as the may approve model forms of common probate,
court orders. During the pendency of an appeal, such conservatorship, guardianship, trust, and
mistakes may be corrected before the appeal is miscellaneous proceeding pleadings and orders,
docketed, and thereafter while the appeal is pending which do not have to conform to the formatting rules
may be corrected with leave of the appellate court. applicable to individually prepared documents.
(b) Mistakes; Inadvertence; Excusable
Neglect; Newly Discovered Evidence; Fraud, Etc. COMMENTARY:
Upon petition and upon such terms as are just, the Use of model forms would greatly lessen
court may relieve an interested person from an order preparation time, mistakes, and court
or judgment for the following reasons: processing time of common court pleadings.
(1) mistake, inadvertence, surprise, or excusable The court should approve model forms of
neglect; common petitions, notices, and orders, but
(2) newly discovered evidence which by due the probate code no longer requires that the
diligence could not have been discovered in time court provide such forms. This rule requires
before the order was issued; the administrative judges of all four circuit
(3) fraud (whether heretofore denominated courts to approve the forms so that practice
intrinsic or extrinsic), misrepresentation, or other among the circuits will be consistent.
misconduct of an adverse party; (Amended November 12, 1997, effective
(4) the order is void; December 15, 1997; further amended April 28, 2006,
(5) the order has been satisfied, released, or effective July 1, 2006.)
discharged, or a prior order upon which it is based
has been reversed or otherwise vacated, or it is no Rule 38. USE OF FORMS.
longer equitable that the order should have Counsel shall follow substantially in form and
prospective application; or content any approved model forms, making changes
(6) any other reason justifying relief from the only for the specific facts and circumstances of a
operation of the order. The petition shall be made case.
within a reasonable time, and for reasons (1), (2), and
(3) not more than one year after the order or COMMENTARY:
proceeding was entered or taken. A petition under Once a model form has been approved,
this subdivision (b) does not affect the finality of an it should be substantially followed in form,
order or suspend its operation. order of presentation, and content
(Amended May 30, 2006, effective July 1, 2006.) throughout the state to assure conformity of
application. However, the committee
COMMENTARY: decided not to mandate use of preprinted
This rule complies substantially with forms, given strong public opposition and
HRCP 60. It does not override any statutory the difficulty of producing forms that could
period of limitations to probate a will or be used with all computer software. Thus,
determine heirs. attorneys need not use any preprinted form
but should closely follow any model forms
published.

HPR--22 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 41

XI. ATTORNEYS' AND services rendered. HRS § 560:3-721(a)


FIDUCIARY'S FEES requires the refund of compensation paid in
excess of that approved by the court.
Rule 39. STATUTORY FEES; TIME OF (Amended November 12, 1997, effective
PAYMENT. December 15, 1997.)
Fees set by statute may be paid by the fiduciary
and charged to the estate when they are earned, in Rule 41. EVIDENCE AND NOTICE.
regular installments over the accounting period, or Whenever there is an objection to the fees of a
when finally calculable. The liquidity of the estate fiduciary or attorney, or court approval of such fees
may determine when the fees may be paid. is sought for any reason, the fiduciary or attorney
whose fees are at issue shall file an affidavit, setting
COMMENTARY: forth the amount and basis of calculation of the fees
Trustee's fees are still governed by sought and any costs advanced which are to be
statute. See HRS § 607-18. Therefore, this reimbursed, at the same time as any petition seeking
rule will still govern the payment of approval of such fees or any response to a petition
statutory trustee's fees. All other fees will be objecting to such fees. The affidavit should
subject to Rule 40. specifically detail the charges for the services and
costs rendered to the date of the affidavit and the
Rule 40. NON-STATUTORY AND anticipated charges and costs to complete the matter
EXTRAORDINARY FEES. through preparation, processing, and service of the
(a) Amount. A fiduciary may pay fees for order. Any interested person may file with the court
services of a fiduciary, attorney, or other professional and serve on the petitioner or its counsel an objection
that are not set by statute or court rule as long as the to the fees and costs requested no later than 24 hours
fees are just and reasonable in amount for the scope prior to the hearing.
of services rendered. The reasonableness of the fees
allowed shall be determined by all the facts and COMMENTARY:
circumstances of the work performed including the Under the new probate code, the fees of
complexity or ease of the matter, the experience, an attorney or fiduciary are not subject to
expertise, and uniqueness of services rendered, the court review unless a party objects to the
amount of time spent on the matter, and the amount fees and review is sought. This revised rule
charged by others in similar situations. requires that, whenever court approval of
(b) Timing of Payment. A fiduciary may pay fiduciary or attorneys' fees is sought (either
non-statutory and extraordinary fees as they are because a party objects or because a party
earned, subject to repayment if any interested person wants such fees to be court-approved), an
objects and if the court finds them excessive. affidavit of the person whose fees are at
issue must be filed with the initial petition or
COMMENTARY: response, as the case may be. Where the
The issue of what a fair fee is and when work for which the fees are sought is not yet
it gets paid is unsettled. This rule attempts to completed (such as in petitions for approval
set forth some guidelines to provide of accounts or for confirmation of sales), the
certainty. Generally, professional fees, affidavit should be forth an estimate of the
including those of an attorney, shall be fees to be incurred through the conclusion of
compensated based on the types of services the hearing.
rendered. For example, where an attorney (Amended November 12, 1997, effective
performs both legal and administrative December 15, 1997.)
services to an estate, the attorney should
keep track, account for, and bill
administrative services separate from, and
probably at a lower rate from, the legal

(Release: 06/06) HPR--23


Rule 42 HAWAI#I PROBATE RULES

XII. MISCELLANEOUS PROVISIONS fiduciary in its capacity as fiduciary, an


attorney-client relationship exists between
Rule 42. CONFLICTS OF INTEREST. the fiduciary and the attorney, and no such
(a) Fiduciary as Attorney's Client. An attorney relationship exists between the attorney and
employed by a fiduciary for an estate, guardianship, the beneficiaries or ward of the estate. See
or trust represents the fiduciary as client as defined Goldberg v. Frye, 266 Cal. Rptr. 483, 489
in Rule 503(a) of the Hawai#i Rules of Evidence and (Cal. App. 1990). ("Particularly in the case
shall have all the rights, privileges, and obligations of of services rendered for the fiduciary of a
the attorney-client relationship with the fiduciary decedent's estate, we would apprehend great
insofar as the fiduciary is acting in a fiduciary role danger in finding stray duties in favor of
for the benefit of one or more beneficiaries or a beneficiaries."); see also Estate of Gory,
ward. 570 So. 2d 1381, 1383 (Fla. App. 4 Dist.
(b) Relationship to Beneficiaries. An attorney 1990); Estate of Larson, 694 P.2d 1051,
for an estate, guardianship, or trust does not have an 1054 (Wash. 1985). Contra, see New York
attorney-client relationship with the beneficiaries of City Opinion 496 (1978). However, as both
the estate or trust or the ward of the guardianship, but the Gory and Larson courts discuss, a
shall owe a duty to notify such beneficiaries or ward fiduciary is not a normal client, but one who
of activities of the fiduciary actually known by the owes a fiduciary obligation to others. This
attorney to be illegal that threaten the security of the fiduciary obligation, therefore, extends to
assets under administration or the interests of the the employees and agents of the fiduciary,
beneficiaries. including the attorney. Therefore, even
(c) Officer of Court. An attorney for an estate, though the attorney has no attorney-client
guardianship, or trust is an officer of the court and relationship with the beneficiaries or ward,
shall assist the court in securing the efficient and the attorney owes a fiduciary duty to notify
effective management of the estate. The attorney has the beneficiaries and the court of the
an obligation to monitor the status of the estate and improper action or inaction of the fiduciary.
to ensure that required actions such as accountings See Mallen & Smith, Legal Malpractice, §§
and closing a probate estate are performed timely. 26.4ff; New York City Opinion 269 (1933);
The attorney, after prior notice to the fiduciary, shall ABA/BNA Lawyers' Manual on Professional
have an obligation to bring to the attention of the Conduct 01:135 (1987). At least one court
court the nonfeasance of the fiduciary. has stated that the attorney's duty of loyalty
(d) Sanctions. The court shall have the power extends to the estate, and not to the
and authority to impose sanctions upon any attorney individual holding the office of fiduciary:
who fails to properly carry out the attorney's duties to therefore, no conflict of interest existed
the fiduciary, the beneficiaries or ward, and the where the attorney took action against the
court. fiduciary for the benefit of the estate. In re
Griffin, 589 N.Y.S.2d 933, 934 (A.D. 2 Dept.
COMMENTARY: 1992).
There is a great deal of uncertainty in This rule establishes clearly that the
the law as to the respective duties that an attorney-client relationship exists between
attorney owes to the fiduciary, the the attorney and the fiduciary insofar as the
beneficiaries, and the court. This rule fiduciary is acting in a fiduciary
attempts to put some certainty in the relationship, and it is therefore an
respective relationships based on court amplification of the definition of the
rulings, ethical rules, and opinions and lawyer-client privilege under Rule 503 of the
decisions of disciplinary counsel. Hawai#i Rules of Evidence. An attorney who
Where a fiduciary retains the services of represents an individual who happens to be
an attorney to assist in the administration of a fiduciary in an unrelated matter is not
the fiduciary estate or to represent the affected by this rule. The fiduciary must be

HPR--24 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 42

conscious of the difference between personal enjoy a qualified attorney-client


actions and fiduciary actions. For example, relationship. It is qualified to the extent that
an attorney could not represent a fiduciary the attorney also has a duty to the
with respect to the administration of a trust beneficiaries to inform them of any serious
and also represent that same individual with and clear malfeasance of the fiduciary,
respect to the private business dealings of which the attorney knows to be illegal, so
that individual, if the individual attempts to that they may take actions to protect
enter into a business arrangement with him themselves and their interests in the estate,
or her as fiduciary because such dual and a duty to the court to monitor the
representation would present a conflict of progress of the estate and inform the court
interest. of the nonfeasance of the fiduciary, so that
Because the fiduciary acts in a qualified the court can call the fiduciary to account
manner (as a representative and for the and enhance the efficiency and effectiveness
benefit of others), the fiduciary relationship of the judicial system.
extends to the employees and agents of the Because of these qualifications to the
fiduciary. Section (a) of the rule clarifies normal attorney-client relationship, the
that the fiduciary relationship is paramount attorney, when placed in the uncomfortable
to the attorney-client relationship. Section position of having to report the fiduciary
(b) clarifies that there is no attorney-client client pursuant to sections (b) or (c), may
relationship with the beneficiaries or ward feel obligated to withdraw from
of the estate, but because of the pervasive representation of the fiduciary. This is
fiduciary relationship, the attorney has a provided for in Rule 44.
duty to the beneficiaries to notify them of the The committee discussed the issue of
malfeasance of the fiduciary. The committee whether there exist differences between the
limited the notification requirement to roles of the personal representative, the
illegal activities known by the attorney to be guardian, and the trustee, and therefore
illegal that threaten the security of the assets whether different standards should exist for
or the interests of the beneficiaries. If the each role. The conclusion of the committee
attorney does not in fact know the acts to be was that the role of each type of fiduciary
illegal, he cannot be faulted for failing to was so similar that the standards applied to
inform the beneficiaries. This disclosure of each should be consistent.
what might otherwise be considered
confidential information is permitted by Rule
1.6 of the Hawai#i Rules of Professional
Conduct. Section (c) defines the attorney's
relationship to the court, and recognizes the
need to efficiently and effectively administer
estates. Therefore, the attorney has an
obligation to monitor the administration of
the estate and to ensure that required
actions take place on a timely basis. The
attorney has an affirmative obligation to
inform the court of the nonfeasance of the
fiduciary. Section (d) allows the court to
sanction the attorney for failing in his or her
duties.
To summarize, the committee, after
research and extensive discussion,
concluded that the attorney and the fiduciary

(Release: 06/04) HPR--25


Rule 43 HAWAI#I PROBATE RULES

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

HPR--26 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 48

Rule 46. BOND. of sureties.


(a) Procedures for Posting. When the court
orders that a bond be filed in connection with the Rule 47. RESERVED.
issuance of letters to a fiduciary, the petitioner shall
present the order appointing the fiduciary to the court Rule 48. DELEGATION OF POWERS TO
for signature, without the letters evidencing CLERK AND DEPUTY
appointment. The clerk shall then accept the order CLERKS.
for filing without presentation of the letters. The (a) Permissible Delegation. In addition to
fiduciary may then present a certified copy of the duties and powers exercised as registrar in informal
order by which the fiduciary was appointed to the proceedings, the court by written order may delegate
insurer for issuance of the bond. The completed bond to the clerk or deputy clerks any one or more of the
and letters may thereafter be presented to the court following duties, powers, and authorities to be
for filing and issuance of the letters. exercised under the supervision of the court:
(1) to set a date for hearing on any matter and to
COMMENTARY: vacate any such setting;
Posting of bond is rare in probate. (2) to issue subpoenas;
However, in those rare cases where bond is (3) to certify copies of documents filed in the
required or the fiduciary wants to obtain it, court;
the insurer will issue bond only upon receipt (4) to correct any clerical error in documents
of a certified copy of the order appointing filed in the court;
the fiduciary. The court clerks have balked (5) to transfer a will to another jurisdiction
at filing the order without issuing the letters pursuant to Rule 74;
at the same time. This rule clarifies the steps (6) to enter estate closing orders in supervised
necessary to post bond and have letters and formal proceedings, if there is no objection to
issued. entry of such order by any interested person.
(b) Entry of Orders. The clerk shall enter and
(b) Payment of Costs. The fiduciary obtaining file all orders made and proceedings had by the clerk
a bond may charge the costs as a proper cost of or deputy clerks in the permanent record of the case
administration of the estate. to which the order or proceeding pertains.
(c) Vacation and Effect of Orders. Any
COMMENTARY: interested person affected by an order entered or an
This rule reflects statute and common action taken under the authority of this rule may have
practice and should eliminate uncertainty. the matter heard by the court by filing a petition for
hearing within ten days after entry of the order or
(c) Proceeding Against Surety. Each surety on taking of the action. Upon filing of a petition, the
a bond presented to the court submits itself to the order or action in question shall be vacated and the
jurisdiction of the court and irrevocably appoints the petition placed on the calendar of the court for the
clerk of the court as the surety's agent upon whom next available hearing date, and the matter shall then
any papers affecting the surety's liability on the bond be heard by the judge. The court may, within the
may be served. The surety's liability may be enforced same ten-day period, vacate the order or action on the
on petition without the necessity of an independent court's own motion. If a petition for hearing by the
action. The petition and such notice of the petition as court is not filed within the ten-day period, or the
the court prescribes may be served on the clerk of the order or action is not vacated by the court on its own
court, who shall forthwith mail copies to the surety motion within such period, the order or action of the
if the surety's address is known. clerk or deputy clerks shall be final as of its date
subject to normal rights of appeal. The acts, records,
COMMENTARY: and orders of the clerk or deputy clerks not vacated
This rule conforms to the Rules of Civil pursuant to the foregoing provision shall have the
Procedure to provide a consistent treatment same force, validity, and effect as if made by a judge.

(Release: 06/04) HPR--27


Rule 48 HAWAI#I PROBATE RULES

(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

HPR--28 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 50

(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

(Release: 06/04) HPR--29


Rule 51 HAWAI#I PROBATE RULES

II. NOTICE Rule 53. EFFECT OF WAIVERS AND


JOINDERS.
Rule 51. INITIAL REQUIREMENTS. Unless otherwise ordered by the court, a person
A party required to serve notice upon an filing a petition, memorandum, or other document
interested person of the filing of a petition shall serve shall not be required to serve the document upon any
a copy of the pleading, the order setting time and person who signed a waiver of notice or who joined
place of hearing (if any), and will and codicils (if in the petition; except that a person filing (a) an
any), and any other documents relating to the inventory (and any amendment or supplement) (b) a
pleading. Published notice to other interested parties petition for approval of final accounts or (e) a
shall be combined with the notice to creditors of the petition to reopen an estate, shall serve a copy on
estate (if any), unless notice to creditors was each interested person, regardless of whether that
previously published with respect to the same person signed a waiver of notice. A person who has
deceased. If a hearing is required, prior to the time filed a waiver of notice may by ex parte petition
set for hearing, the party shall file (a) a proof of request the court to set aside the waiver and require
service, with return receipts showing all persons who notice to the person thereafter.
received service, and a statement setting forth the
attempts to notify any persons who did not receive COMMENTARY:
notice, along with (b) any general notice published in This rule clarifies the effect of the filing
accordance with statute. of a waiver of notice or joinder. If a waiver
of notice is filed, the waiver shall apply to
COMMENTARY: all regular filings except as may be
This rule clarifies what documents are specifically provided in the waiver. (For
to be served on an interested person at the example, a beneficiary may waive notice of
commencement of a probate proceeding. In all proceedings except those relating to
addition, it mandates combined circuit court disposition of real property.) In all cases,
notice and notice to creditors (as has long interested persons must receive a copy of the
been the practice), unless the notice to final accounting, must receive notice of
creditors has been previously filed, in which proceedings relating to real property that
case the circuit court notice (if required) the beneficiaries would otherwise receive,
may be published separately. Published and must receive a copy of the inventory
notice to interested persons is not required (and any amendments or supplements).
in informal proceedings (HRS § 560:3-301) In addition, the court always has the
but is required in formal and some small power to override a waiver of notice and
estate proceedings (HRS §§ 560:3-403(a), order notice to a beneficiary despite the
560:3-1206(a)). The rule further provides waiver. This might be the case where there
that, where efforts to contact a particular is a problem fiduciary and the court wants to
person have been unsuccessful or make sure that all interested persons are
unresponsive, the published notice will be aware of the actions of the fiduciary. An
deemed to have been sufficient service, so individual who has filed a waiver could also
that the granting of any petition or by ex parte petition request that the court set
application not be delayed. Rule 8 allows aside the waiver.
interested parties to appear later in the (Amended November 12, 1997, effective
proceeding if they can establish that the December 15, 1997; further amended June 25, 2003,
attempted service was unreasonable. effective July 1, 2003.)
(Amended November 12, 1997, effective
December 15, 1997.)

Rule 52. RESERVED.

HPR--30 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 56

Rule 54. AT FINAL ACCOUNTING. rapidly enough to allow the commencement of a


If formal approval of final accounts is sought, the lawsuit before the running of the statute of
personal representative shall serve a copy of the limitations or the filing of a response or objection in
petition for approval of final accounts and the cases where the deceased or the estate is a defendant;
accounting on all beneficiaries whose interests have provided, however, that the special administrator's
not been satisfied and on all creditors who filed authority under this paragraph (c) shall be limited to
claims which are neither barred nor satisfied, in the a period of no longer than six (6) months, and a
manner provided by Rule 7. Otherwise, the personal personal representative must be appointed prior to
representative shall serve a copy of the final accounts obtaining court approval of any settlement; or
to all distributees of the estate whose interests are (d) an emergency or other situation exists such
affected thereby and a copy of the closing statement that the estate will be prejudiced unless a special
to all distributees, as well as to any creditors whose administrator is appointed pending appointment of a
claims have neither been barred nor satisfied. personal representative; or
(e) objections have been filed to the probate of
COMMENTARY: a will or to the appointment of a personal
This rule clarifies who the interested representative, and it is advisable to appoint a special
parties are to an estate at the time of final administrator to administer the estate with the
accounts and points out that unsatisfied powers of a personal representative, but not with the
creditors must also been given notice. This power of distribution, pending resolution of the
rule, combined with Rule 64, eliminates the objections; or
need for publication of notice at final (f) a conflict of interest arises or a situation
accounting. Notice must be served and proof develops where the personal representative cannot or
made as provided in Rules 7 and 8. should not act temporarily, and a special
(Amended November 12, 1997, effective administrator is appointed for the specific purpose of
December 15, 1997.) either resolving the conflict issue or temporarily
acting until the personal representative can resume
Rule 55. RESERVED. full powers.
All petitions seeking the appointment of a special
administrator shall set forth the grounds for seeking
III. SPECIAL ADMINISTRATION the appointment.

Rule 56. WHEN APPROPRIATE. COMMENTARY:


An interested person may seek appointment of a Many practitioners are uncertain of the
special administrator where necessary to preserve the proper use of a special administration, and
estate or to secure its proper administration, some have, once a special administration is
including but not limited to situations where: established, attempted to run a complete
(a) the existence of assets to be probated is probate without having a personal
uncertain, and an administrator is required to locate representative appointed. This rule provides
or identify assets, including investigating the merits guidance as to the appropriate situations in
of pursuing a lawsuit or claim for relief; or which a special administrator should be
(b) no probate assets exist, but an administrator appointed.
is necessary either to complete an action of the Paragraphs (a)-(d) of this Rule 56
deceased or to act on behalf of the deceased or the describe the most common situations giving
deceased's estate (other than receipt of no-fault rise to the appointment of a special
insurance benefits), including but not limited to administrator. Paragraph (a) allows the
releasing legal or equitable interests of the deceased appointment of a special administrator to
and executing documents in pending or threatened track down assets, since many times
litigation where the deceased is a defendant; or financial institutions are reluctant to release
(c) for some reason, a probate cannot be opened information about a deceased's assets except

(Release: 06/04) HPR--31


Rule 56 HAWAI#I PROBATE RULES

to a court-appointed official. Paragraph (b) hold up administration of the estate pending


covers the situation where a lawsuit was resolution of the contested matter, a special
threatened or pending against the defendant, administrator can be appointed with all
but in settlement no assets will be paid to the powers of a personal representative except
probate estate, and therefore the special for the power of distribution.
administrator is only required for purposes Paragraph (f) clarifies that a special
of signing documents (after court approval) administrator may be appointed even though
and binding the deceased's estate; it does a personal representative has been
not allow a Special Administrator to collect appointed and is acting where, for a limited
no-fault benefits where no probate assets period or with respect to a specific issue, the
exists. Paragraph (b) also covers the personal representative cannot or should not
situation of a deceased whose signature is act. For example, if the personal
required to sign a mortgage release or deed representative has filed a creditor's claim
in satisfaction of agreement of sale or against the estate, a special administrator
similar equitable document. Paragraph (c) may be appointed for the sole purpose of
covers the situation where a civil action is evaluating, allowing or disallowing, and
filed by or on behalf of the estate or the defending the claim, while the personal
heirs or a suit is filed against the deceased representative can continue to serve on
or his or her estate. In most instances, other issues. Another circumstance where
informal probate can be opened rapidly paragraph (f) might apply is where the
enough that special administration should personal representative is physically
be unnecessary. If, however, the nominated incapacitated temporarily (such as by
personal representative is not a close family hospitalization), but will be able to resume
member, informal probate may take too long his or her duties in the future.
if the statute of limitations on the claim is (Amended June 25, 2003, effective July 1, 2003.)
about to expire or a response or objection
must be filed. In those situations, Rule 57. TERMINATION.
appointment of a special administrator is A special administration terminates upon order
appropriate, but a probate should be opened of the court.
as soon as possible, and so the time allowed
for special administration and the power of COMMENTARY:
the special administrator are limited. It is often unclear when a special
Paragraph (d) covers the situation where administrator's appointment ends. Where the
there are probate assets and a personal special administration is a prelude to the
representative's appointment is to be sought, appointment of a personal representative,
but the estate will be prejudiced if no one is the appointment of the personal
authorized to act on behalf of the estate in representative automatically terminates the
the meantime. Examples of this situation special administrator's appointment, but the
would be to track down a will, identify heirs order appointing the personal representative
or beneficiaries, sign tax returns on behalf should specifically terminate the special
of the deceased or estate, and many others. administration.
Paragraphs (e) and (f) address the need
for a special administrator when the regular
probate proceeding has been commenced.
Under paragraph (e), a special
administrator may be appointed where a will
contest or objections to the appointment of a
spe c i f i c i n d i v i d u a l a s p e r s onal
representative have been filed; rather than

HPR--32 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 60

Rule 58. ACCOUNTING. special administrator. Where a will contest


Unless otherwise ordered by the court, a special or other contested matter causes a special
administrator who is thereafter appointed personal administrator to be appointed to administer
representative shall not file a separate accounting, the estate, and a personal representative is
but shall include the accounting for the period of later appointed, the statutory fees should
special administration with the accounting of the normally be allocated between the special
personal representative. A special administrator who a d m i n i s t r ator and the per s o n al
is not appointed personal representative shall account representative based on the relative work
to the court in the format and manner required of a done for the estate. In other situations, the
personal representative. court may allow the personal representative
to take the full statutory fee and allow the
COMMENTARY: special administrator additional fees.
If a special administrator is later (Amended November 12, 1997, effective
appointed personal representative, normally December 15, 1997.)
the fiduciary submits only one all-inclusive
accounting, and this rule follows this
practice. But where the special IV. INVENTORIES
administrator is not the same as the
personal representative (such as where the Rule 60. FORMAT AND CONTENT.
interim special administrator is not The personal representative (or special
appointed personal representative or where administrator) may file an inventory with the court.
a special administrator is appointed to Any inventory filed in court shall show on the first
handle a particular matter while the page the date of death, and the signature of the
appointment of a general personal personal representative. The inventory shall show the
representative is still in effect), the rule aggregate gross value of the probate assets that have
clarifies that the special administrator must then been valued, the nature and value of each asset
account to the court for his or her actions. with a description of any loans secured by the assets,
Where the nature of the special and if there is an appraisal, the name of the appraiser
administrator's duties did not involve and the date of the appraisal. The personal
handling assets, such accounting can often representative shall make available for inspection by
take the form of an affidavit setting forth the any interested person any appraisals or other
actions taken in compliance with the order documents indicating the valuation of any listed
of the court. assets.

Rule 59. COMPENSATION. COMMENTARY:


Unless otherwise agreed between the special The new probate code does not require
administrator and heirs or beneficiaries of an estate, that an inventory be filed with the court; it is
the court shall set the compensation of a special optional. If the inventory is filed with the
administrator. The fees and costs of any petition to court, the cover sheet must show the date of
approve the special administrator's fees shall be death and personal representative's
borne by the estate unless otherwise ordered by the signature. This rule describes the other type
court. of information that should also be included
in the inventory.
COMMENTARY: (Amended November 12, 1997, effective
Where the special administration is December 15, 1997.)
instituted just to get a head start on the
probate proceedings and the fiduciaries are
the same, often there is no need for
additional or separate compensation for the

(Release: 06/04) HPR--33


Rule 61 HAWAI#I PROBATE RULES

Rule 61. AMENDMENT. V. CREDITORS' CLAIMS


The personal representative shall prepare an
amended or supplemental inventory if necessary, as Rule 63. PRESENTING CLAIMS.
set forth in HRS § 560:3-708. If the original A creditor seeking payment from the deceased
inventory was filed with the court, then any shall present a claim by (a) delivering the claim, with
amendment or supplement thereto shall also be filed an affidavit in support thereof, to the personal
with the court and served upon all interested persons. representative, or (b) filing the claim and affidavit
An amended inventory shall completely restate the with the court and timely serving a copy of the claim
original inventory and shall clearly set forth the to the personal representative.
nature of the changes by bracketing deleted matter
and underscoring added matter. The personal COMMENTARY:
representative may supplement an inventory where This rule explains the two methods by
the changes are minor in relation to the original which a claim may be presented to the
inventory and shall only set forth the changes to be personal representative under HRS §
made. The personal representative shall prepare the 560:3-804(1). Although presenting the claim
first sheet of the amended or supplemental inventory to the personal representative directly is
in the same manner as the first sheet specified in preferred, there may be times when filing
Rule 60. If the original inventory was not filed with with the court is necessary. If a claim is
the court, then the personal representative need not presented directly to the personal
file any amended or supplemental inventory with the representative, the claimant may file a proof
court, but shall serve such amended or supplemental of service to establish a record of when the
inventory upon all interested persons. claim was presented. Claims are by and
large administrative matters, and the courts
COMMENTARY: prefer to have as little paperwork in the
Often, personal representatives file probate files as possible. Therefore, an
amended or supplemental inventories, and it attempt is made in this rule to keep any
is unclear from the amendment or court-filed documents with respect to
supplement just what is being changed and presenting a claim as minimal as possible by
what effect the change has on the not requiring that all supporting
previously-filed inventory. This rule draws a documentation be attached, but only that the
distinction between amended inventories, claim be supported by affidavit. This rule
which are completely restated, and does not prohibit the pursuit of claims by
supplemental inventories, which have only a any other legal method.
few changes. By requiring compliance with
Rule 60, the snapshot information on the
first page is retained.

Rule 62. RESERVED.

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.)

HPR--34 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 66

Rule 64. CLOSING ESTATES; negative alteration of the terms of the


ARRANGEMENTS. contract would be considered a new
Where an estate is ready to be closed but post-death sale, subject to court
outstanding claims re main, the personal confirmation procedures.
representative shall include in the petition for
approval of final accounts or Closing Statement (if Rule 66. AUTHORIZATION TO OFFER
any) a description of the arrangements made with the REAL PROPERTY FOR SALE.
creditor for securing or satisfying the claim. These A personal representative shall petition the court
arrangements may include assumption in writing of for authorization to offer for sale real property
the obligation by beneficiaries, posting of a bond or belonging to the estate if such a petition is required
other security in an amount equal to the obligation by the deceased's will or is demanded by a devisee in
owed plus twenty percent to cover costs of a testate probate proceeding or by an heir in an
enforcement and collection where the claim is intestate probate proceeding. If all the beneficiaries,
contingent or unmatured, or other arrangements devisees or heirs who would otherwise be entitled to
approved by the court or the creditor. take the property absent a sale join in a petition for
authorization to sell, then such authorization may be
COMMENTARY: granted on an ex parte basis. If all such beneficiaries
HRS § 560:3-810(b) provides the do not join in the petition, the court shall set the
methods by which an estate may be closed, petition for hearing with notice to all beneficiaries
even though there are unsatisfied creditors' who would otherwise be entitled to take the property
claims pending. This rule is intended to absent a sale.
encourage the personal representative to
work out arrangements with the claimant COMMENTARY:
and present them to the court at the final HRS § 531-28.5 no longer requires a
accounting for approval. personal representative to obtain authority
(Amended November 12, 1997, effective to offer real property for sale if the
December 15, 1997.) decedent's will is silent as to such authority.
But the personal representative must petition
the court for such authority if required by
VI. SALE OF REAL PROPERTY the will or demanded by a devisee in a
testate probate proceeding or by an heir in
Rule 65. PRE-EXISTING SALES an intestate probate proceeding. This rule
CONTRACTS; CHANGES. clarifies that such authority can be granted
The personal representative may perform the on an ex parte basis if all interested persons
deceased's contracts to sell or convey real property join in the petition for authorization. This
without an order of the court. However, when the rule does not eliminate the need for a
terms of a contract are changed after the deceased's confirmation of any sale if required under
death, and the changes have a significant effect on HRS § 531-29.
what the deceased's estate will receive, the personal (Amended November 12, 1997, effective
representative must first seek court approval. December 15, 1997; further amended June 25, 2003,
effective July 1, 2003.)
COMMENTARY:
HRS § 535-1 permits the specific
performance of a deceased's real estate
contracts. This rule is intended to save time
and money by allowing the personal
representative to complete any real property
transfer without the need for litigation or
court approval. However, a substantial

(Release: 06/04) HPR--35


Rule 67 HAWAI#I PROBATE RULES

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

HPR--36 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 70

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.

(Release: 06/04) HPR--37


Rule 71 HAWAI#I PROBATE RULES

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.

Rule 72. BROKERS', ATTORNEYS', AND


PERSONAL REPRESENTATIVE'S
FEES AND COMMISSIONS.
(a) Personal Representatives and Attorney's
Fees. Personal representative's and attorneys' fees
may be considered and approved at the time of the

HPR--38 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 73

(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.)

VII. DETERMINATION OF HEIRS

Rule 73. PROCEDURE FOR DETERMI-


NATION OF HEIRS.
A proceeding to determine the heirs of an
individual without probate and further administration
may be brought where at least five years have passed

(Release: 06/04) HPR--39


Rule 74 HAWAI#I PROBATE RULES

VIII. DEPOSIT OF WILLS in the court system from which a probate


proceeding could be initiated without further
Rule 74. DEPOSIT OF WILL WITHOUT procedural obstacles (such as transferring a
PROBATE. deposited will to a probate proceeding).
(a) Method of Deposit. Any individual may Because the custodian of the will is likely
deposit with the court the original will and any not being compensated for his or her efforts,
codicils for safekeeping without probate after the the rule does impose a notice requirement
death of the individual who executed the will. Such on the custodian.
deposit shall be accomplished by the filing of a The deposit of a will is not a judicial
Deposit of Original Will signed by the person proceeding but an administrative function.
presenting the will, and to the extent known to the No determination as to the validity of a will
person presenting the will, setting forth the name and is made when a will is received for deposit,
all known aliases of the deceased, the date and place and the deposit does not serve to bar the
of death, and the names and addresses of all known general five-year period in which to probate
heirs at law and persons named in the will, including the will of a deceased. However, the
the nominated personal representative. The Deposit deposited will is a public record open to
of Original Will shall be accompanied by the original inspection by the general public.
will and any known codicils and a certificate of death Paragraph (d) provides that the will,
or other suggestion of death for the individual. unless probated or withdrawn, must be
(b) Assignment of Case Number. The clerk retained by the court for a period of 20
shall file the Deposit of Original Will under a P. No. years from the deceased's death, which is
for the deceased. Any later Deposit of Original Will beyond the longest period provided for
or probate proceeding subsequently filed on behalf of probate of a will under HRS § 560:3-108.
the deceased shall use the same P. No. After that period, the will may be recorded
(c) Access to Deposited Will. A will, once by some method so as to affix the image for
deposited, shall be considered a public document and later retrieval (such as microfilm,
open for inspection by the general public. No microfiche, or CD-ROM), and then the will
certified copies of deposited wills may be issued. may be destroyed.
(d) Maintenance of Original Will; Time
Limits. Unless probated or withdrawn pursuant to Rule 75. TRANSFER OF DEPOSITED WILL.
Rule 75, an original will deposited with the court A will deposited with the court may be
shall be maintained for 20 years after the death of the transferred by the clerk of the court at the expense of
person who executed the will, after which period the the petitioner upon petition of the withdrawing
will may be recorded by the clerk in some fixed form person after notice to all interested persons that
that will provide an accurate image of the original establishes that the will is to be presented for probate
and then the original may be destroyed. in another jurisdiction, identifying the jurisdiction
and court in which it is to be presented for probate,
COMMENTARY: and attaching a certified copy of an order of the court
There is currently no formal mechanism in the transferee jurisdiction requesting the transfer.
for filing a will with the court without If the petition is filed by the personal representative
initiating a full probate proceeding, nominated by the will, the court may grant the
although HRS § 560:2-516 provides that a petition on an ex parte basis; otherwise, the petition
custodian of a will, on request of an may be granted only after notice to all interested
interested person, must deliver the will to a parties and hearing.
person able to secure its probate or to an
appropriate court. This rule establishes a COMMENTARY:
procedure whereby the custodian of a will This rule allows a deposited will to be
can deposit the will with the court, without transferred for probate in another
further responsibility, and create a case file jurisdiction. The will is transferred directly

HPR--40 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 79

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

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Rule 80 HAWAI#I PROBATE RULES

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.)

HPR--42 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 86

XI. CONCLUSION OF PROCEEDINGS December 15, 1997.)

Rule 82. RESERVED. Rule 85. DISTRIBUTION TO MISSING


PERSONS.
Rule 83. INTERIM ACCOUNTING. If a beneficiary entitled to a portion of the estate
The personal representative may file a verified cannot be located at the time of distribution, then the
interim accounting with the court annually, or for personal representative shall deal with such
longer periods, in the format and with the procedures beneficiary's share of the estate pursuant to the
set forth in Rule 26. If the court approves any interim provisions of Hawai#i Revised Statutes Section
accountings, the personal representative, upon filing 560:3-914. Such distribution shall be reflected in the
of the final accounting, shall refer to, but not include court order approving the distribution of assets and
prior approved accountings. shall be filed by the clerk under the same P. No. as
the original proceeding.
COMMENTARY:
In particularly complex estates which COMMENTARY:
may run for years, supplying a single Rarely, a beneficiary's address is
accounting at the end of the administration unknown or is lost during the administration
may be almost meaningless because it is so of the estate. In such instances, HRS §
complex or records have been lost in the 560:3-914 allows the fiduciary to transfer
interim. This rule allows interim accountings the assets to the person's conservator, if any,
to be presented and possibly also approved, or otherwise to the State. This rule clarifies
so that the process can be kept up at a that the transfer shall be made pursuant to
meaningful pace through the estate court order and shall be carried in the same
administration. The rule allows the filing of case number as the probate.
interim accountings, but they will not be (Amended November 12, 1997, effective
approved by the court unless a request is December 15, 1997.)
made. If the personal representative asks for
approval, the court can proceed in regular Rule 86. NEWLY DISCOVERED ASSETS.
course. Where a proceeding has been terminated and
(Amended November 12, 1997, effective thereafter additional assets of the deceased are
December 15, 1997.) discovered that were not administered in the
proceeding, the personal representative or other
Rule 84. SUPPLEMENTAL ACCOUNTING; interested person may petition the court to reopen the
FINAL RECEIPTS. proceeding for the purpose of administering the
After approval of the final accounting, if any, the asset. The petition shall include statements that the
personal representative shall distribute the assets to creditors' claims and estate and transfer taxes, if any,
the persons entitled thereto, file final receipts, and have been fully satisfied, or explain to what extent
when applicable, file a supplemental accounting for they were not originally satisfied. Where the asset
receipts and disbursements which are not included in needs only to be distributed pursuant to court order,
the final receipts for distributions. The filing of the and all taxes and claims have been settled, the
final receipts and, if applicable, a supplemental personal representative or interested person may
accounting, shall serve to discharge the personal petition the court for an amended order of
representative without further court order. distribution of the estate to include the newly
discovered property. The court shall order
COMMENTARY: distribution of the newly discovered property to the
This rule has been amended to reflect appropriate persons and determine whether the
that the filing of final accounts and personal representative or interested persons and the
obtaining court approval is now optional. attorney are entitled to additional fees, cost, and
(Amended November 12, 1997, effective expenses, and the amount thereof.

(Release: 06/04) HPR--43


Rule 86 HAWAI#I PROBATE RULES

COMMENTARY: court shall be to mail the pleadings and papers so


This rule addresses the situation of a served, postage prepaid, to the non-resident at the
forgotten asset and the need for an order last mailing address which the non-resident shall
distributing the asset (such as a small real have given the clerk of the court.
property interest). This allows the
amendment of the order of distribution to COMMENTARY:
include the newly-discovered property and The 1990 statutory change to allow
can often be completed on an ex parte basis. non-residents to serve as personal
However, such a short-cut procedure cannot representative in Hawai#i requires that the
be used where the asset forms a large share non-resident submit to the jurisdiction of
of the estate and creditors' claims or tax Hawai#i state courts. This rule seeks to
claims were not fully satisfied in the implement that requirement, both through an
proceeding. The court may allow reasonable affirmative submission to jurisdiction (either
fees and costs for the petition and transfer in the petition or in a separate acceptance of
based on the effort expended. appointment) and through appointment of
the chief clerk of the court as the
individual's agent for service of process
XII. MISCELLANEOUS related to the proceeding.
(As amended November 2, 1995, effective
Rule 87. SUBMISSION TO JURISDICTION January 2, 1996; further amended November 12,
BY NON-RESIDENT PERSONAL 1997, effective December 15, 1997.)
REPRESENTATIVE.
(a) Manner and Effect of Submission. Where Rule 88. DEMAND FOR NOTICE.
an individual not a resident of the State of Hawai#i (a) Preparation and Filing. A Demand for
seeks appointment as special administrator or Notice shall set forth the name of the deceased, any
personal representative, the petition or application known aliases, approximate date and place of death
for appointment signed by the non-resident or the (if known), the nature of the interest of the
acceptance of appointment shall contain a clear and demandant in the estate, and the address of the
concise statement to the effect that (a) the individual demandant or the demandant's attorney. The Demand
fully and freely submits to the personal jurisdiction for Notice shall be assigned a P. No. if no
of the courts of the State of Hawai#i and (b) the proceedings have been commenced for the deceased's
individual fully, freely, and irrevocably appoints the estate or the P. No. for the deceased's estate if
clerk of the court in the circuit in which the proceedings have already commenced.
proceeding is brought as the individual's agent for (b) Duty to Investigate: Demandant. Prior to
service of process for all purposes related to the filing a demand for notice in other than a pending
proceeding in the State of Hawai#i. probate proceeding, the demandant shall make a
(b) Procedure for Substituted Service. The diligent search of the records of the circuit court in
individual so appointed shall keep the clerk of the which the demand is being filed to determine
court informed in writing of the individual's mailing whether probate proceedings have previously been
address at all times. A non-resident so appointed filed. The Demand for Notice shall contain a
shall keep the clerk of the court informed in writing statement that such search has been conducted.
of the non-resident's mailing address and telephone (c) Duty to Investigate: Petitioner. Prior to
number at all times. Before any substituted service filing a petition to commence a probate proceeding,
may be made on the clerk of the court, the party the petitioner shall make a diligent search of the
attempting service must make, and document to the records of the circuit court in which the petition is
satisfaction of the clerk of the court that the party being filed to determine whether a demand for notice
attempting service has made, reasonable attempts at has been filed with respect to the deceased.
mailed or personal service. Upon service on the clerk
of the court, the sole responsibility of the clerk of the

HPR--44 (Release: 06/04)


HAWAI#I PROBATE RULES Rule 90

(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

(Release: 06/04) HPR--45


Rule 90 HAWAI#I PROBATE RULES

petition, a statement describing any property they COMMENTARY:


received from the decedent within two years of the This rule clarifies that the court will
decedent's death, its value if known, and the date it consider disputes between conflicting
was received. Within 30 days from the date of claimants under an affidavit of collection.
service of the petition, any recipient of property that (Note that to transfer an automobile, there
may be included in the augmented estate shall file must be coordination with the financing
and serve upon all interested parties a statement entity which usually holds the Certificate of
setting forth a description of the property, its value if Ownership, the person seeking the transfer
known, and the date it was received. who usually holds the Certificate of
Registration, and the county finance
COMMENTARY: department.)
Under prior law, which allowed the
surviving spouse an elective share of 1/3 of Rule 92. TRANSFER OF TYPE OF
the net probate estate, the elective share PROCEEDING.
petition was heard in conjunction with the When a personal representative discovers after
petition for approval of final accounts. The the commencement of a proceeding that the assets of
new law gives the surviving spouse a the estate are greater in amount than originally
percentage of the augmented estate, which thought, and that the value of the assets thereby
includes property the decedent transferred exceeds the proper jurisdictional amount for a small
to others, either by inter vivos gift or at estates proceeding, the personal representative shall
death. Therefore, a separate hearing must be petition the court for change to informal, formal, or
held to determine (a) the applicable supervised proceedings. Likewise, where the assets
percentage the surviving spouse is entitled of the estate are less than originally thought, the
to; (b) what assets are included in the personal representative in his or her discretion may
augmented estate; and (c) the order in which petition the court for change to a small estates
assets shall be applied to satisfy the elective proceeding. In the event that the notice requirements
share. Creditors are not interested persons for the new procedural level are more stringent than
who must be served with the elective share the notice requirements originally followed, the more
petition. Recipients who are entitled to stringent requirement shall be satisfied prior to the
notice include but are not limited to trustees court granting the petition.
of trusts established by the decedent,
beneficiaries under insurance policies or COMMENTARY:
retirement accounts, joint tenants, and This rule simplifies the transfer of a
beneficiaries of trusts established by the proceeding from small estates to informal or
decedent. supervised and vice versa. With the use of a
(Amended November 12, 1997, effective single case number under Rule 50 for all
December 15, 1997.) proceedings relating to a particular
deceased, no petitions to terminate one level
Rule 91. AFFIDAVITS OF COLLECTION. of proceeding and transfer of documents to
Where more than one person has equal standing new files will be necessary, as all factual
to present an affidavit of collection, the person data and prior determinations can remain in
holding the asset to be collected shall transfer the effect. The rule recognizes that notice
asset to the first person who presents an affidavit in requirements may be different for different
proper form, and the transferring person shall levels of proceedings and therefore requires
thereafter have no liability to any other person. Later that the more stringent requirement be
claimants who claim that they have greater priority or satisfied. For example, there is a one-time
right to the asset to be collected may bring a publication requirement for estates under
proceeding to determine rights to collected assets. $10,000 compared to the three-time
publication requirement for estates subject

HPR--46 (Release: 06/04)


Rule 95 HAWAI#I PROBATE RULES

documents pursuant to Rule 15(d) of the Hawai#i COMMENTARY:


Probate Rules. 1995 Commentary: This rule brings the
(b) Acknowledgment. If the Application for guardianship practice in line with the
Issuance of Acknowledgment of Authority is probate practice under Rule 50, in that all
approved by the Registrar, the Registrar shall issue guardianship of the property proceedings,
an Acknowledgment of Authority, which shall expire no matter what the jurisdictional procedural
three years from the date of issuance, and such amount, will have one case number. Thus, if
limitation shall be stated on the face of the a small guardianship grows beyond the
acknowledgment of authority. clerk's jurisdiction, or a regular
(Added June 25, 2003, effective July 1, 2003.) guardianship is depleted to the point of
falling within the small guardianships
Rules 96.-99. RESERVED. jurisdiction, change of the jurisdictional
procedure can be done simply by a petition
and order to note the changed
PART C. CONSERVATORSHIP AND circumstances, and a new proceeding need
GUARDIANSHIP PROCEEDINGS not be initiated.
Indicating the nature of the proceeding
PREFATORY NOTE: Unless otherwise below the case number will help clarify the
provided, in Part C of these rules, the same rules that context of the guardianship and the rules to
apply to conservatorship apply to guardianship of the be applied. A guardianship of a minor
property. terminates automatically upon the minor's
attaining the age of majority or
I. COMMENCEMENT OF PROCEEDING emancipation unless extended by the court.
If an incapacitated minor is under
Rule 100. CASE NUMBERS. guardianship, then upon attaining majority,
(a) Except as provided in subsection (b), the the guardian should file a petition to
clerk of the court shall assign a C. No. to all continue the guardianship as one for an
proceedings for conservatorship. A person preparing adult.
a pleading shall indicate the C. No. and immediately 2004 Commentary: Under HRS § 560:5-
below the C. No., in parentheses, a notation of 106, the probate court has exclusive
whether the matter is for Protective Arrangement, jurisdiction over protective proceedings and
Conservator of Minor, Conservator of Adult, or concurrent jurisdiction with family court
Small Conservatorship. over guardianships of adults in cases where
(b) Initial Protective and Guardianship there is also a protective proceeding
Proceedings. The party may file one petition for a concerning the adult. Changing "G. No." to
protective proceeding and for a guardianship of the "C. No." reflects terminology in Article V of
same adult, which petition shall be assigned a CG. Chapter 560, effective January 1, 2005,
No. A person preparing a pleading shall indicate the where "guardian" is used instead of
CG. No. and immediately below the CG. No. in "guardian of the person" and "conservator"
parentheses, a notation that the matter is for instead of "guardian of the property." In
Conservator and Guardian of Adult. The petition addition, H.R.S. §§ 571-14 and 603-21.5
shall also comply with the notice requirements were amended to provide the probate court
applicable to both protective proceedings and concurrent jurisdiction with family court
guardianship proceedings. The petition shall also over adult guardianships, effective January
include all of the information required in HRS §§ 1, 2005, consistent with subject matter
560:5-304 and 560:5-403. jurisdiction provisions in Article V of the
Hawaii Probate Code (previously H.R.S §
560:5-102; as of January 1, 2005, H.R.S §
560:5-106). The "CG. No." case number is

HPR--48 (Release: 06/06)


HAWAI#I PROBATE RULES Rule 101

for cases where guardianship and conservatorship proceeding to wrap into


conservatorship are sought for the same any settlement or judgment. While this may
adult person at the outset of the case. not cause problems outside the First Circuit,
Guardianship (formerly "guardianship of in that judges of the other circuits are
the person") proceedings for an adult person generally experienced in conservatorship
initiated in the Family Court (in cases matters, if a trial judge in the First Circuit
bearing an "FC-G" case number assumes jurisdiction of the conservatorship
designation) and conservatorship (formerly for purposes of disposition of the tort action,
"guardianship of the property") proceedings very often the requirements of the statute
for the same adult person initiated in and rules are not met and the
probate court (in cases initiated before the conservatorship has to be "cleaned up" later
Hawai#i Probate Rules were adopted, by the probate judge. By requiring the
bearing an "SP" number, or in cases probate judge, and not the trial judge, to
initiated under the Probate Rules effective pass on matters with respect to the receipt of
prior to January 1, 2005, bearing a "G. No." a settlement or award, greater efficiency will
or in cases initiated on or after January 1, result as "clean up" proceedings should be
2005, bearing a "C. No."), if consolidated in eliminated.
the probate court (as permitted effective (Amended April 28, 2006, effective July 1, 2006.)
January 1, 2005), will retain both separate
case numbers and will not be assigned a
"CG." number.
To the extent practicable, all Hawai#i
Probate Rules and administrative orders
that presently apply to "guardianship of the [ Next page is HPR--49. ]
property" (G. No.) proceedings shall also
a pply to "conservators h i p " a nd
"conservatorship and guardianship" (C. No.
and CG. No.) proceedings.
(Rule and commentary amended February 16,
2005, effective nunc pro tunc January 1, 2005.)

Rule 101. PERSONAL INJURY RECOV-


ERIES.
When a minor or incapacitated person receives a
settlement or judgment from any claim or action, a
conservatorship action must be initiated by the
plaintiff's attorney and any settlement approved by
the court insofar as it affects the prjotected person or
respondent. The judge presiding in probate shall
appoint a conservator for the minor or incapacitated
individual and determine whether any settlement is
reasonable.

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

(Release: 06/06) HPR–48A


HAWAI#I PROBATE RULES Rule 103

Rule 102. PHYSICIAN'S LETTERS. II. HEARINGS


(a) Conservatorship. The petitioner for
conservatorship may submit a physician's letter or Rule 103. FLAG SHEETS.
report which states: (1) the respondent's ability to An original and no fewer than two copies of flag
receive and evaluate information or to make or sheets in the form ordered by the court shall be
communicate decisions (even with the use of presented to the clerk of the court for all hearings to
appropriate and reasonably available technological appoint a conservator, to appoint a conservator and
assistance) is impaired; (2) the medical cause a guardian for an incapacitated adult, to compromise
(diagnosis) of said impairment; (3) the prognosis for a tort claim on behalf of a minor or incapacitated
the impairment; (4) the impact of the impairment person, and to confirm the sale of real property.
upon the individual's ability to manage the These flag sheets shall be presented to the court no
individual's property and business affairs effectively; later than ten days prior to the scheduled hearing.
(5) how long the physician has been treating the Flag sheets shall not be file-marked as a pleading but
respondent; and (6) any other matter the physician shall be date-stamped by the clerk and placed in the
deems relevant. court file for reference. Failure to present a required
(b) Guardianship. The petitioner for flag sheet in time shall cause the hearing to be
guardianship may submit a physician's letter or report continued to the next available date. Where the facts
which states: (1) the respondent is unable to receive of the case as set forth in the flag sheet change after
and evaluate information or make or communicate submission of the flag sheet to the court, an amended
decisions to such extent that the individual lacks the flag sheet shall be presented.
ability to meet essential requirements for physical
health, safety, or self-care (even with the use of COMMENTARY:
appropriate and reasonably available technological This rule makes flag sheets mandatory in
assistance); (2) a description of the nature, type, and all conservatorship and guardianship
extent of the respondent's impairment; (3) the proceedings in all circuits. The flag sheets
prognosis for the impairment; and (4) any other are not filed as pleadings but are
matter the physician deems relevant. date-stamped as having been received by the
clerk, to eliminate the chance for lost
COMMENTARY: documents and to provide a clear record.
Doctors are generally reluctant to The flag sheet is normally placed in the
declare a person "incompetent," but court's file for ready reference by the judge
incompetency is not the test for protective and court staff. It is anticipated that, with an
proceedings. This rule clarifies that the appropriate top margin for the date-stamp,
letter or report of the doctor upon which a the flag sheets will follow generally the
petition for conservatorship and format of current flag sheet forms 1-C and
guardianship relies must (1) address the 1-D; ideally, they will be prepared as
person's ability to manage the person's pre-printed forms.
property and affairs in an effective manner, (Amended June 25, 2003, effective July 1, 2003;
if the person's ability to receive and evaluate further amended April 28, 2006, effective July 1,
information or to make or communicate 2006.)
decisions is impaired, even with the use of
appropriate and reasonably available
technological assistance, HRS § 560:5-401,
and (2) provide other information to enable
the court to evaluate the weight to be given
to the letter or report.
(Amended April 28, 2006, effective July 1, 2006.)

(Release: 06/06) HPR--49


Rule 104 HAWAI#I PROBATE RULES

III. NOTICE or G. No. for the respondent or protected person's


estate if proceedings have already commenced.
Rule 104. TO WHOM. (2) CONSERVATORSHIP AND GUARDIA NSHIP . A
(a) Conservatorship. The petitioner in a person filing a Demand for Notice shall set forth the
conservatorship or protective arrangement name of the respondent or protected person, any
proceeding shall notify the persons designated by known aliases, the nature of the interest of the
statute and shall also serve notice on: demandant in the person and/or estate, and the
(1) Any attorney appointed by the court to address of the demandant or the demandant's
represent the respondent. attorney. The clerk of the court shall assign a CG.
(2) The Department of Veterans' Affairs in cases No. to the Demand for Notice if no proceedings have
wherein the respondent is a veteran of the military been commenced for the respondent or protected
receiving benefits from that department. person's estate or the CG. No. for the respondent or
(3) Any other attorney representing the protected person's estate if proceedings have already
respondent. commenced.
(4) Any Kokua Kanawai appointed pursuant to (b) Duty to Investigate: Demandant. Prior to
Rule 113. filing a demand for notice in other than a pending
(5) Any guardian ad litem appointed pursuant to conservatorship and/or guardianship proceeding, the
HRS §560:5-115. demandant shall make a diligent search of the
(b) Guardianship. The petitioner in a records of the circuit court in which the demand is
guardianship proceeding shall notify the persons being filed to determine whether conservatorship
designated by statute and shall also serve notice on: and/or guardianship proceedings have previously
(1) Any attorney appointed by the court to been filed, and a diligent search of the records of the
represent a respondent. family court in the circuit in which the demand is
(2) Any other attorney representing the being filed to determine whether guardianship
respondent. proceedings have previously been filed in family
(3) Any Kokua Kanawai appointed pursuant to court, and shall state in the Demand for Notice that
Rule 113. such search has been conducted.
(4) Any guardian ad litem appointed pursuant to (c) Duty to Investigate: Petitioner. Prior to
HRS §560:5-115. filing a petition to commence a conservatorship
and/or guardianship proceeding, the petitioner shall
COMMENTARY: make a diligent search of the records of the circuit
This rule is consistent with HRS §§ court in which the petition is being filed and a
560:5-205, 560:5-404 and 560:5-309 and diligent search of the records of the family court in
does not require service of notice of a the circuit in which the petition is being filed to
conservatorship or guardianship proceeding determine whether a demand for notice has been
on a child under the age of fourteen. filed with respect to the respondent or protected
(Amended April 28, 2006, effective July 1, 2006.) person.
(d) Validity of Demand. A Demand for Notice
Rule 104.1. DEMAND FOR NOTICE. filed other than in a pending conservatorship and/or
(a) Preparation and Filing: guardianship proceeding shall be effective for a
(1) CONSERV ATORSH IP . A person filing a period of five years from the date of filing. A
Demand for Notice shall set forth the name of the Demand for Notice shall be effective only for the
respondent or protected person, any known aliases, circuit in which it is filed.
the nature of the interest of the demandant in the (Added June 25, 2003, effective July 1, 2003;
estate, and the address of the demandant or the further amended April 28, 2006, effective July 1,
demandant's attorney. The clerk of the court shall 2006.)
assign a C. No. to the Demand for Notice if no
proceedings have been commenced for the
respondent or protected person's estate or the C. No.

HPR--50 (Release: 06/06)


Rule 113 HAWAI#I PROBATE RULES

limited in role to responding to the petition Rule 113.1. CONFIDENTIALITY OF


for protective proceeding. The Kokua RECORDS.
Kanawai, without prior court order, has no In proceedings for guardianships and
authority to initiate actions on behalf of the conservatorships, any written report of a Kokua
respondent. Rather, the court could appoint Kanawai, any court-ordered professional evaluation,
an attorney for the respondent. and any responses or objections thereto, shall be
Given this relationship and role, the sealed upon filing. A court order will continue to be
Kokua Kanawai does not represent the required to authorize the clerk to unseal a
respondent, and, therefore, service upon the confidential report or evaluation.
Kokua Kanawai does not constitute service
on the respondent. Rule 104 requires that COMMENTARY:
notice be served on a respondent or attorney HRS §560:5-307 and HRS §560:5-407
even when a Kokua Kanawai is appointed require Kokua Kanawai reports and
and served. professional evaluations to be sealed upon
To enable the Kokua Kanawai to fully filing, but made available to the court; the
review the pertinent facts and make a fair respondent (without limitation as to use); the
recommendation to the court, this rule gives petitioner, the Kokua Kanawai, the
the Kokua Kanawai authority to review the petitioner's and respondent's lawyers (for
medical records of the protected person. purposes of the proceeding); and other
Hawai‘i Rules of Evidence 504(c) and persons (for any purpose the court may
504.1(c), relating to the physician-patient order for good cause).
and psychologist-client privileges, provide The comment that accompanies both
that the conservator or guardian for the Article 307 and Article 407 of the Uniform
patient or client may claim the privilege. Guardianship and Protective Proceedings
However, Hawai‘i Rules of Evidence Act explains:
504(d)(3) and 504.1(d)(3) provide that there . . . . This section is designed to
is no privilege as to a communication protect the respondent's privacy, but
relevant to the physical, mental, or still make the records accessible
emotional condition of the patient or client when needed to any of the involved
in which the patient or client relies upon the parties or to others on a showing of
condition as an element of the person's good cause. The drafting committee
position with respect to the proceeding. recognized that "watch-dog"
Thus, where the Kokua Kanawai is acting on groups, the media, and others can
behalf of the court, that person may and perform essential functions of
must have access to the medical and deterring abuse and facilitating
psychological records of the respondent to reform, and in drafting this
be able to fully advise the court, but may not provision balanced the need to
thereby further reveal any privileged protect the respondent's privacy
information. with the need of others to access
(Amended April 28, 2006, effective July 1, 2006.) this information.
Normally, documents are not filed under
seal without a court order, which the filing
party may seek by ex parte petition. This
rule makes clear, however, that court staff
must file under seal Kokua Kanawai reports
filed pursuant to §560:5-303(e) or §560:5-
406(e), and reports of a "physician,
psychologist, or other individual appointed
by the court who is qualified to evaluate the

HPR--58 (Release: 06/06)


Rule 117 HAWAI#I PROBATE RULES

VIII. FEES special conservator to promptly file for


permanent conservatorship or face
Rule 117. CONSERVATOR’S FEES: automatic termination after 90 days, thereby
BASIS AND AMOUNT. giving the protected person the opportunity
Unless otherwise ordered by the court, a to challenge the proceedings. If a permanent
conservator shall be entitled to charge and collect conservatorship petition or a petition to
against the conservatorship estate compensation in extend the special conservator's appointment
the amount equal to that permitted by statute to be is pending, the special conservator's
charged by trustees of a private trust under Hawai‘i authority is extended until further court
Revised Statutes Section 607-18. order.
Ideally, where the need for a permanent
COMMENTARY: conservator is evident, all ex parte petitions
HRS § 560:5-417 allows the conservator for appointment of a special conservator will
"reasonable compensation." Much confusion be accompanied by the petition for
has resulted in trying to determine the appointment of a permanent conservator, so
appropriate basis for a conservator's that there are no delays in determining the
compensation. By using the trustee fee rights of the protected person. Other
schedule, certainty will result with a situations may arise where there is no need
consistent fee schedule for similar work. for a permanent conservator, but the
(Amended April 28, 2006, effective July 1, 2006.) original 90 day period is not sufficient for
the special conservator to complete his or
her duties, and the special conservator's
IX. TERMINATION OF PROCEEDINGS appointment may be extended by the court
for good cause.
Rule 118. SPECIAL CONSERVATORSHIPS (Amended June 25, 2003, effective July 1, 2003;
A N D P R O T E C T I V E further amended April 28, 2006, effective July 1,
ARRANGEMENTS. 2006.)
When a special conservator has been appointed
on an ex parte basis, unless otherwise provided by Rule 119. EX PARTE TERMINATION OF
court order, the authority of the special conservator PROCEEDINGS.
terminates automatically 90 days after the issuance of Within 60 days of the death of the protected
the letters of special conservatorship, unless there is person or within 60 days of the minor attaining the
then pending before the court a petition for age of majority or emancipation, the conservator
appointment of a permanent conservator or a petition shall file a final report, and a petition for approval of
to extend the appointment of the special conservator final accounts, termination of conservatorship, and
for good cause, in which case the special discharge. In the petition, the conservator shall set
conservator's appointment continues until the court forth the relevant facts and attach any approval of the
orders otherwise. A special conservator whose accounts signed by the personal representative of the
powers are terminated automatically shall account to protected person's estate or the former protected
the court for his or her actions. minor. If such approval is attached to the petition, the
conservator may present the petition on an ex parte
COMMENTARY: basis.
If a special conservatorship or
protective arrangement is established on an COMMENTARY:
ex parte basis and a need for a permanent 1995 Commentary: HRS § 560:5-430
conservator is evident, the protected person was amended in 1992 to eliminate the
must be given rights to due process to requirement for a hearing to terminate a
challenge the conservatorship imposed guardianship where the guardianship
without notice or hearing. This rule forces a automatically terminates because of the

HPR--60 (Release: 06/06)


Rule 152 HAWAI#I PROBATE RULES

II. NOTICE COMMENTARY:


This rule clarifies the two most common
Rule 152. METHOD OF PROVIDING situations giving rise to a determination of
NOTICE. death: the catastrophic incident where death
The petitioner for determination of death shall is certain to have occurred but no body was
serve notice on all individuals named in the petition r e c o v er e d a n d t h e u n e x p l a i n e d
in the manner provided by Rule 7 and shall cause disappearance. In the former case, the court
publication of the notice in a newspaper of general may set the time and date of disappearance.
circulation in Hawai#i once a week for three In the latter case, the statute determines the
consecutive weeks, addressed to the missing person, death to have occurred five years after
including that person's date of birth and social disappearance. In compliance with State
security number, if known, and notifying that person Department of Health requirements, this
of the filing of the petition and the date and time set rule requires the court to include in its order
for hearing. In addition, petitioner shall serve notice specific wording regarding the timing and
of the hearing on the alleged decedent at his or her place of death.
last known address by registered or certified mail.

COMMENTARY.
This rule establishes standard notice
requirements consistent with those used in
other proceedings before the probate court.

(Amended November 12, 1997, effective


December 15, 1997.)

III. EVIDENCE

Rule 153. RESERVED.

IV. ORDER

Rule 154. CONTENT OF ORDER.


If, after notice and hearing, the court determines
that (a) the missing person's death is reasonably
certain from the circumstances of the disappearance,
or (b) the person has been missing for a period of at
least five years, during which the person has not been
heard from and whose absence is not explained after
diligent search and inquiry, the court may issue an
Order Determining Death. The Order Determining
Death shall set forth (a) the likely date and place
death occurred based on the evidence, or (b) if the
court cannot determine the likely date, the date and
place of death as being the date five years after
disappearance at the place the missing person was
last seen or heard from.

HPR--66 (Release: 06/06)


HAWAI#I PROBATE RULES Exhibit A

EXHIBIT A the Mediation Rules. Alternatively, the court will


assign a mediator to the case.
MEDIATION RULES FOR PROBATE, (B) Mediators shall be compensated, unless
TRUST, CONSERVATORSHIP, AND otherwise determined by the court. All fees or
GUARDIANSHIP (MEDIATION RULES) expenses related to the use of mediators in cases
referred to mediation shall be borne by the parties,
Adopted and promulgated by the Supreme Court and not by the estate, unless otherwise ordered by the
of the State of Hawai#i, August 23, 1996, court.
effective October 1, 1996.
Rule 5. AUTHORITY OF MEDIATORS.
Mediators shall work with the parties to facilitate
Rule 1. P R O B A T E , T R U S T , agreements on substantive and procedural matters
CONSERVATORSHIP, AND and attempt to aid in the voluntary resolution of
GUARDIANSHIP MEDIATION. cases. Mediators shall terminate the mediation if the
The probate court may refer probate, trust, mediator believes the process is unproductive or that
conservatorship, and guardianship, cases in the State any party or attorney is not mediating in good faith.
of Hawai‘i to mediation. Cases may be referred upon Mediators may recommend to the court that sanctions
the petition of a party, by written stipulation of all be imposed against a party or attorney who has failed
parties, or upon the court's own motion. Participation to comply with these Mediation Rules. Mediators
in the mediation is mandatory in all cases that the shall not issue decisions or make procedural or
court refers to mediation. substantive recommendations about the case to the
(Amended April 28, 2006, effective July 1, 2006.) court.

Rule 2. INTENT AND APPLICATION OF Rule 6. ATTENDANCE AT THE MEDIATION.


RULES. If a party is represented by counsel, counsel with
The purpose of probate, trust, conservatorship, the most direct relationship to the party for the
and guardianship mediation is to provide parties with purpose of settlement shall participate in the
an alternative to litigation in probate, trust, mediation. The mediator may request that parties or
conservatorship, and guardianship matters. third persons attend the mediation. If the mediator
(Amended April 28, 2006, effective July 1, 2006.) believes the presence of parties or third persons is
critical to the resolution of a case, the mediator may
Rule 3. MATTERS SUBJECT TO MEDIATION. require them to attend the mediation.
All contested probate, trust, conservatorship, and
guardianship matters subject to probate court Rule 7. CONFIDENTIALITY.
jurisdiction shall be eligible for referral to mediation. The mediator shall not communicate any matters
All probate, trust, conservatorship, and guardianship discussed at the mediation conference to any court.
cases referred to mediation shall abide by these Likewise, parties and attorneys are prohibited from
Mediation Rules. informing the court of discussions or actions taken at
(Amended April 28, 2006, effective July 1, 2006.) the mediation. This rule does not require the
exclusion of any evidence otherwise discoverable
Rule 4. ASSIGNMENT TO MEDIATOR. merely because it was presented in the course of the
(A) Parties may jointly select any person to mediation. This rule also does not require exclusion
serve as a mediator who has agreed to serve on a of evidence that is offered for another purpose such
private basis. Such stipulation must be made within as proving bias or prejudice of a witness, negating a
twenty (20) days after referral to mediation and must contention of undue delay, or proving an effort to
include a statement signed by the mediator obstruct a criminal investigation or prosecution.
expressing his or her willingness to mediate under

(Release: 12/06) HPR--67


Exhibit A HAWAI#I PROBATE RULES

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.

HPR--68 (Release: 06/06)