hawaii probate rules

HAWAI#I PROBATERULES

Adopted and Promulgated bythe Supreme Court

of the State of Hawai#i

February 16, 1995Effective March 1, 1995

With Amendments as Noted

Comments and commentary are provided by the rules committee

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

The JudiciaryState of Hawai#i

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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 FEESAND 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 BENEFICIARYAUTHORITY 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 PERSONALREPRESENTATIVE(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


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, ANDGUARDIANSHIP (MEDIATION RULES)

HAWAI#I PROBATE RULES Rule 1

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HAWAI#I PROBATE RULES

PART A. GENERAL RULES

I. SCOPE OF RULES

Rule 1. SCOPE OF RULES.These rules govern the procedure in the circuit

courts of the State of Hawai‘i in all probate,conservatorship, guardianship, trust, legalrepresentation for no fault benefits, anddetermination of death proceedings, and moreparticularly proceedings arising under HRS Chapters531 [Probate: Jurisdiction and Procedure], 532[Descent of Property], 533 [Dower and Curtesy], 535[Specific Performance of Deceased's Contracts toConvey Real Estate], 551 [Guardians and Wards],551A [Office of the Public Guardian], 551D[Uniform Durable Power of Attorney Act] but onlyto the extent of issues arising from or between theattorney in fact and an incapacitated or deceasedprincipal, 553A [Uniform Transfers to Minors Act],554 [Trusts and Trustees; Accounts], 554A [UniformTrustees' Powers Act], 554B [Uniform CustodialTrust Act], 554C [Uniform Prudent Investor Act],556 [Uniform Fiduciaries Act], 557A [UniformPrincipal and Income Act], and 560 [UniformProbate Code] except Article V, Parts 2 and 6, andSection 603-21.6 [Probate Jurisdiction]. They shallbe construed to secure the just, speedy, andinexpensive determination of every proceeding.

COMMENTARY: These rules encompass all matters

arising under Titles 29, 30, and 30A of theHawai‘i Revised Statutes, with fiveexceptions:

- Chapter 551A [Office of the PublicGuardian] comes within the scope of thecircuit court and the family court.

- Disputes involving powers of attorneywhere the issues do not relate to thefiduciary relationship between the principaland agent or to the effect of the disability ordeath of the principal or agent. Disputesinvolving third parties arising fromtransactions in which a power of attorneywas used shall, except in cases describedabove, be considered civil actions not

subject to these rules. These rules also donot cover issues relating to a Durable Powerfor Health Care Decisions, which is withinthe jurisdiction of the family court.

- Chapter 555 [Employee's Trusts],because that chapter is limited in its scopeto definitional sections and a specific waiverof the Rule Against Perpetuities.

- Chapter 558 [Land Trusts], becausethat chapter does not establish a truefiduciary relationship, but is more in theorder of a conveyancing and title-holdingstatute, and therefore should fall within theHawai‘i Rules of Civil Procedure.

- Parts 2 and 6 of Article V, Chapter560, because those sections fall within thejurisdiction of the family court. HRS§ 560:5-106(3) allows consolidation ofprotective and guardianship proceedingsrelating to the same person.

Note that these rules clearly apply totrust proceedings. Prior to these rules, somepractitioners argued that a trust proceedingwas a civil action requiring a complaint,summons, and answer. In 1995, these rulesbrought trust proceedings in line with theprocedural rules applicable to probates andwhat was then known as guardianship of theproperty. (Amended November 12, 1997, effective

December 15, 1997; further amended April 28, 2006,effective July 1, 2006.)

Rule 2 HAWAI#I PROBATE RULES

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Rule 2. ONE FORM OF ACTION.There shall be one form of action for any case to

which these rules apply, which shall be known as a"proceeding."

COMMENTARY: Regular civil cases and family court

cases are referred to as "civil actions." TheUniform Probate Code generally refers toall actions thereunder as "proceedings." Theuse of the term "proceeding" would maintainconsistency and help eliminate confusion asto proceedings under these rules as opposedto proceedings controlled by otherprocedural rules.

Rule 2.1. MEDIATION RULES.The Probate Court may direct parties to

participate in mediation pursuant to the MediationRules for Probate, Trust, Conservatorship, andGuardianship (Mediation Rules), attached to theserules as Exhibit A and effective October 1, 1996, andas subsequently amended.

(Added August 23, 1996, effective October 1,1996; further amended April 28, 2006, effective July1, 2006.)

II. PLEADINGS AND PETITIONS

Rule 3. PLEADINGS ALLOWED; FORMOF PLEADINGS.

(a) Form. There shall be a petition and aresponse or objection. For purposes of these rules,an application in an informal proceeding is a petition,unless the context of the rule indicates otherwise.Persons may file a joinder, response, or objection toa petition or to a master’s, guardian ad litem’s, orKokua Kanawai’s report. Persons may file amemorandum in support of their pleadings. Everypetition, except one entitled to be heard ex parte,shall be accompanied by an order setting date, time,and place of hearing, which shall include a statementnotifying interested persons of the 30-day limit forresponding to the petition as provided by Rule 10(c).No other pleading shall be allowed, provided that ifa contested matter is referred to the regular civilcalendar pursuant to Rule 20, then the Hawai#i Rules

of Civil Procedure shall apply with respect to thereferred petition.

COMMENTARY:A pleading is a statement by a party to a

proceeding or a court-appointed officialwhich sets forth or responds to allegations,claims, denials or defenses, and may besupplemented or supported by affidavit ormemorandum. To simplify probate courtproceedings, to distinguish them from civilactions, and to address the confusion thatcurrently exists with respect to the properform of pleadings in trust and otherproceedings, all requests for court relief oraction shall be initiated by a petition.Motions as a form would be prohibited,except where a contested matter has beenassigned to the regular civil calendarpursuant to Rule 20, during whichassignment the Hawai#i Rules of CivilProcedure would apply. The committeeconsidered combining the concepts of an"objection" and a "response," but felt thatan objection is clearly and unequivocally inopposition to a pleading, while a responsemay not necessarily oppose all reliefrequested in a petition, and could raiseadditional issues related to the petition. Aresponse could be a pleading referring tothe initial petition, or could be in referenceto an objection or another party's responseor a master’s, guardian ad litem’s, or KokuaKanawai’s report. A response should statein its title clearly to what other pleading it isresponding. This rule does not abolish othertypes of procedural documents, such asjoinders, receipts, waivers, and the like,which do not contain substantive statementsof position.

Orders setting time and place of hearingmust contain a sentence notifying interestedparties that they have 30 days to file aresponse or objection to the petition.



(b) Filings in Response to Petition orMaster’s, Guardian ad Litem’s, or KokuaKanawai’s Report. Opposition to any or all of therelief prayed for in a petition or to a master’s,guardian ad litem’s, or Kokua Kanawai’s report shallbe in the form of a written objection. Opposition toan application in an informal proceeding shall also bemade by filing a petition for formal proceedings.Interested persons may also file a written response toa petition or to a master’s, guardian ad litem’s, orKokua Kanawai’s report if they do not necessarilyobject to a petition or to a master’s, guardian adlitem’s, or Kokua Kanawai’s report but desire tostate on the record their position, or if they desire toraise additional issues that are related to the petitionor to the master’s, guardian ad litem’s, or KokuaKanawai’s report.

COMMENTARY:In informal proceedings, a person who

objects to an application must file a formalpetition for determination of intestacy orprobate of a will in order to have theobjection heard by the court. Such a petitioncan be filed either before or after the lettersare issued (where, for example, no advancenotice is given). While HRS § 560:3-302(b)allows the registrar to issue letters if morethan 14 days have elapsed since service ofthe application, it may be difficult for anobjecting party to file a formal petitionwithin that time frame. This rule, therefore,allows the party to file a written objectionwith the court to at least put the registrar onnotice of such objection, but a formalpetition must also be filed in order for thecourt to consider the issue.

(c) Content of Petitions. A petition shallcontain (1) a reference to the specific statute or rule,if any are applicable, under which the petition isbrought, (2) a concise and plain statement of the factsgiving rise to the need for the relief prayed for, (3) allspecific facts, allegations, and representations, if any,required by any statute under which the petition isbrought, and (4) a prayer for the findings, relief, ororder sought. Prayers in the alternative or of severaldifferent types may be presented. Petitions shall be

construed liberally, and may be deemed amended toconform to the evidence presented.

COMMENTARY:This rule outlines what must be

contained in a petition, including specificstatutory citations. Petitioners should givesufficient facts in the petition to clearlysupport the relief requested, including allspecific information required by anyapplicable statute. Given the equitablenature of the proceeding, alternative andmultiple prayers may be made, and thepetition may be deemed amended to reflectthe evidence presented to the court. This ruleis in keeping with the informal nature of theproceedings and the desire to dispose ofmatters quickly without delay caused byfailure to follow technical rules of pleading.

(d) Documents Sealed Upon Filing. Thefollowing documents shall be sealed upon filing:

(1) birth certificate;(2) marriage certificate;(3) death certificate;(4) tax return;(5) Kokua Kanawai's report;(6) court ordered professional evaluation; and(7) responses and objections to a Kokua

Kanawai's report or professional evaluation.The foregoing documents shall remain sealed

unless otherwise ordered by the court, or as providedin HRS §560:5-307 and -407.

COMMENTARY:This rule is intended to protect the

respondent's privacy and to minimize therisk of identity theft. Because of thesensitive information included in birth,death, and marriage certificates, and in taxreturns, those documents must be sealedupon filing. The Kokua Kanawai report andany evaluations by court-orderedprofessionals are required to be sealed uponfiling pursuant to Haw. Rev. Stat. § 560:5-306 and 5-406(f). Because the reports aresealed, responses and objections that referto them are also sealed.



(e) Required Notice; Effect of Failure toRespond. An interested person who opposes apetition or a master’s, guardian ad litem’s, or KokuaKanawai’s report or intends to support a response orobjection shall file the response or objection with thecourt and serve it on all counsel or parties who havemade an appearance in the proceeding. Failure torespond within the time required under Rule 10(c)may be cause for determining that a party waivesobjection to the petition.

COMMENTARY:This rule clearly establishes that an

interested person cannot sit on his or herrights; all interested persons must let theirpositions be known, or they will be deemedto have waived any objections to thegranting of the petition. The last sentence ofthe rule uses the term “may” because theremay be circumstances in which an interestedperson does not receive notice of the petitionwithin a sufficient time to respond, and suchpersons should be allowed to come in afterthe hearing and show why they should beheard.

(f) Amendment and Supplementation ofPleadings. A party may amend or supplement apleading to reflect a change in facts after the time offiling of the original pleading, additional relevantfacts or law not stated in the prior pleading, or toreflect the facts as established on the record. Anyamendment or supplement relates back to the date ofthe original pleading. All amendments andsupplements shall comply with the filingrequirements of Rule 10(c).

COMMENTARY: Generally in probate, amended

pleadings to reflect newly-discovered facts,changes in circumstance, or changes inposition are allowed. This rule continuesthat practice, as long as the new pleading isfiled within the time constraints of Rule10(c).(Amended November 12, 1997, effective

December 15, 1997; further amended May 17, 2004,effective July 1, 2004; further amended April 28,2006, effective July 1, 2006.)

Rule 4. FORMAT OF DOCUMENTS.(a) Compliance with Rules of the Circuit

Courts. The form of pleadings, affidavits, andmemoranda, and method of filing, shall comply withRules 2 and 3 of the Rules of the Circuit Courts.

COMMENTARY:The Rules of the Circuit Courts

technically apply to probate proceedings atthis time, but those rules are primarilyfocused on the conduct of litigation, and soshould be made inapplicable. Circuit CourtRule 2, having to do with the mechanics offiling documents, and Rule 3, having to dowith the actual format of pleadings, areincorporated by reference to achieveconsistency in the filing of documentsreceived by the court, and to eliminate theneed for documents receiving clerks to checkmore than one set of rules for filingrequirements.

(b) Stapling and Punching of Documents. Alloriginal documents shall be perforated at the top witha standard two-hole punch. Documents of 10 pagesor less shall be secured by a single staple in the upperleft corner of the document. Documents of more than10 pages shall not be stapled, but shall be fastenedwith paper fasteners through the two-hole punchperforations.

COMMENTARY:This rule is of minimal burden to the

attorneys, but makes document handling lessburdensome on the court staff.

(c) Size of Paper, Folding OversizedDocuments to Fit. All documents presented to thecourt for filing shall not exceed 81/2 inches by 11inches in size. Any exhibits, documents, or wills thatexceed those measurements shall be folded in such away that come within these restrictions, and anyphotocopies of any such documents shall likewise befolded or reproduced on letter-size paper in such amanner that the entire contents of the originaldocument are visible and legible on the copy.



COMMENTARY:This complies with current court policy,

but expands the reference to copies to allowdocuments to be reduced through aphotocopying process to fit on a letter-sizedpaper, so long as the copy is complete andlegible.

(d) Notation of Hearing Time. Every pleadingfiled for which a hearing date has been previouslyassigned shall include under the case number on thefirst page of the pleading a notation of the date, time,and anticipated presiding judge for the hearing.

COMMENTARY:This rule will assist the court in

processing documents, particularly whencourtesy copies have been delivered to thejudge's chambers.

Rule 5. SIGNING OF PLEADINGS.(a) Verification of Pleadings; Affidavits. All

pleadings (other than those signed by a party'sattorney) shall include a statement at the end andbefore the signature of the person presenting thepleading to the effect that the person understands thatthe document is deemed to include an oath,affirmation, or statement to the effect that itsrepresentations are true as far as the person executingor filing it knows or is informed, and that penaltiesfor perjury may follow deliberate falsification. Sucha statement shall be accepted in lieu of an affidavit asto the facts stated in the pleading. The signature of anapplicant in informal proceedings shall be notarized.

If a pleading requires consideration of facts notappearing of record or verified as provided above, itshall be supported by affidavit, signed by the personhaving knowledge of the facts and competent totestify. An attorney may submit a declaration in lieuof an affidavit to support facts outside of the record.

COMMENTARY:This rule continues to require

verification of pleadings in both informaland formal proceedings. However,applicants in informal proceedings toprobate a will, determine intestacy, orappoint a personal representative must alsohave their signatures notarized. Because it is

anticipated that the registrar will beprocessing a large number of informalapplications filed by pro se applicants, it isimportant to provide an easy mechanism forthe Registrar to determine that the applicantis who he or she claims to be. A notarizedsignature will give the Registrar this proofwithout adding any significant cost to theprobate process.

(b) Signing by Attorneys. Except as required bystatute or by rule, any pleading, memorandum,stipulation, or other paper of a party represented byan attorney shall be signed by the attorney of recordin the attorney's individual name. The signature of anattorney constitutes a certificate by the attorney thatthe attorney has read the submittal; that to the best ofthe attorney's knowledge, information, and belief,there is good ground to support it; and that it is notinterposed for delay. If a submittal is not signed or issigned with intent to defeat the purpose of this rule,it may be stricken as sham and false and theproceeding may proceed as though the submittal hadnot been served. For willful violation of this rule, anattorney may be subjected to an appropriate sanction.Similar action may be taken if scandalous or indecentmatter is inserted. The attorney's name shall be typedor legibly printed directly below the attorney'ssignature.

COMMENTARY:This clarifies the role of the attorney in

the preparation and presentation ofdocuments. It is the Probate Rules version ofCivil Procedural Rule 11.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 6. STIPULATIONS.(a) Presentation. Unless made in open court, all

stipulations shall be in writing, signed by the partiesor their attorneys, clearly identify all parties notparticipating in the stipulation, and be filed with thecourt.

(b) Format for Court Approval. An orderbased upon a stipulation shall be sufficient if thewords "Approved and so ordered" are endorsed at theend of the stipulation and signed by the judge.



COMMENTARY:This rule would conform probate court

stipulations to common practice. Thestatement as to parties affected and notaffected by the stipulation will speed up theprocessing of stipulations, as the court staffwill not have to confirm that all parties havesigned the stipulation. The attorneys do nothave to sign the stipulation, but may do so inlieu of the signature of the attorney's client.

A stipulation is not necessarily signed orapproved by the judge, but Rule 6(b)provides guidance as the proper format touse for court approval.

III. NOTICE; TIME

Rule 7. METHODS OF SERVING NOTICE.Except as otherwise specifically provided by

these rules, statutes, or court order, personal serviceof notice may be made by means of hand delivery orfirst-class mailing to the person at the person's lastknown address, by mailing or delivering a copy ofany document to an attorney who makes anappearance for a person in the proceeding, by serviceof process and summons, by publication, or by anyother method reasonably calculated to give notice tointerested persons. Service of notice on a guardian adlitem shall be deemed to be equivalent to service onthe persons represented by the guardian ad litem.

COMMENTARY:HRS § 560:1-401 identifies various

methods of serving notice. HRS § 560:5-309(b) requires notice in a conservatorshipto be "served personally" on the respondent.Service of notice by a sheriff or other officialis not necessary if a more informal processcan achieve the same result.

The rule also clarifies that service ofnotice on a guardian ad litem is sufficient tocover notice on the individuals representedby that guardian ad litem, and thatadditional notice to the individuals isunnecessary. (Commentary amended April 28, 2006, effective

July 1, 2006.)

Rule 8. PROOF OF SERVICE.A party required to prove service shall file (a) a

written acknowledgment of service by the party orattorney served, or (b) an affidavit by the personmaking the service, together with original signedreturn receipts, or (c) a certificate of service by theattorney, or (d) any other proof satisfactory to thecourt, unless otherwise provided by law or by theserules. The filing of a postal return receipt, receipt fornotice, waiver of notice, or joinder, signed by theaddressee or the parent of a minor addressee, isprima facie proof of service on the person whosigned such document. A party who is prejudiced byfailure to receive due notice or to be served, or whois prejudiced by reason that service was made bymail or publication, may petition the court forappropriate relief.

COMMENTARY:The statutes are silent as to the proper

method of making proof of service. This ruleallows receipts to be filed, an affidavit ofservice to be filed, or any other method to beused that establishes on the record thatnotice was given and received. A proof ofservice relying on postal return receiptsmust attach copies of the return receipts.

Rule 9. PUBLICATION OF NOTICE.(a) Permissible Publications. Whenever

publication of notice is required, it shall be made ina newspaper of general circulation within the judicialcircuit or district where the proceeding is beingbrought.

COMMENTARY:There have been and continue to be

abuses in publication of notice. A clearstatement of the permissible publicationswould eliminate possible constitutionalchallenges and uncertainty. The committeedecided against endorsing any specificnewspapers because of concern that theymay not have sufficient circulation to beconsidered of general circulation in thejudicial circuit. Publication in the HonoluluAdvertiser or the Honolulu Star-Bulletinwould be presumed to provide adequatenotice in all judicial circuits of this state.



Use of any other publication shall provideadequate notice only if approved in advanceby the court in the order for notice.

(b) Proof of Publication. Whenever thepublication in a newspaper of any summons, process,notice, or order is required, evidence of suchpublication shall be given by the affidavit of theeditor, publisher, manager, foreman, clerk, or printerof such newspaper, to which affidavit is attached acopy of such summons, process, notice or order, andwhich affidavit also specifies the dates and timeswhen and the newspaper in which the publicationwas made. The party required to prove service shallfile or be responsible for the filing of the affidavitwith the clerk before the time fixed for hearing.

COMMENTARY:This formalizes the current practice.

(c) Content and Brevity of Notice. A personwho prepares a notice to be published shall includein the notice the title of the case, case number, courtinvolved, a brief description of the matter to beheard, the date, time, and location of the hearing, andthe name, address, and telephone number of eitherthe party or the party's attorney. Any additionalinformation shall be restricted to that required bystatute or rule or essential to provide notice of thereason for the publication.

COMMENTARY:This rule is intended to keep costs of

administration down by providing guidelinesfor the content of published notice. Only theessential information necessary to provideadequate notice is to be included in thepublication; law firm names, attorneylicense numbers, names of multipleattorneys, fax numbers, and the like shouldbe eliminated. Capitalized words should beavoided, as they take up more space andresult in higher publication costs. Phrasessuch as "the Honorable John Doe, Judge ofthe above entitled court" and "on Mondaythe 12th day of October, 1992" should bedropped in favor of "Judge John Doe" and"Oct. 12, 1992." The idea is to give thepublic sufficient information to know what is

happening, when, and where, and who tocontact for additional information. Thegeneral guideline is to keep it simple. Use ofsmaller fonts in the published notice mighthelp to cut costs.

Rule 10. COMPUTATION OF TIME.(a) Computation. In computing any period of

time prescribed or allowed by these rules, by order ofcourt, or by any applicable statute, the day of the act,event, or default after which the designated period oftime begins to run is not to be included. The last dayof the period so computed is to be included, unless itis a Saturday, Sunday, or a legal holiday, in whichevent the period runs until the end of the next daywhich is neither a Saturday, a Sunday, nor a legalholiday. When the period of time prescribed orallowed is less than seven days, intermediateSaturdays, Sundays, and holidays shall be excludedin the computation. As used in this rule, "holiday"includes any day designated as such pursuant toSection 8-1 of the Hawai#i Revised Statutes.

(b) Enlargement. When by these rules or by anotice given thereunder or by order of court an act isrequired or allowed to be done at or within aspecified time, the court for cause shown may at anytime in its discretion (1) with or without petition ornotice, order the period enlarged if request thereforis made before the expiration of the period originallyprescribed or as extended by a previous order or (2)upon petition made after the expiration of thespecified period, permit the act to be done where thefailure to act was the result of excusable neglect; butit may not extend the time for taking any actionunder Rule 4 of the Hawai#i Rules of AppellateProcedure, except to the extent and under theconditions stated in that rule.

COMMENTARY:These rules provide clarification on the

measurement of time and conform probatecourt practice to common court rules.

(c) Time to File Pleadings or Reports.(1) OBJECTION OR RESPONSE. A party objecting

or responding to a petition must file the objection orresponse with the court and serve it on interestedpersons within 30 days after service of the petitionand notice of hearing, or in the case of an informal



application, within 14 days after service of anyapplication under HRS § 560:3-302(b), except whena different time is prescribed by statute or courtorder, provided that in matters for which the courthas appointed a master or Kokua Kanawai, thefollowing provisions apply:

(A) Master's Report; Objection or Response toMaster 's Report. Unless otherwise ordered by thecourt, the court-appointed master shall file a reportwith the court and serve a copy of the report on allcounsel who have appeared in the proceeding within30 days after the date the master was appointed orwithin 30 days after the date responses to the petitionare due, whichever is later. Any party objecting orresponding to the master's report shall file anobjection or response to reject or confirm, in wholeor in part, the report and shall serve the objection orresponse on all counsel who have appeared in theproceeding within 10 days after the date the master'sreport is filed.

(B) Kokua Kanawai's Report; Objection orResponse to Kokua Kanawai's Report. Unlessotherwise ordered by the court, a Kokua Kanawaiappointed pursuant to HRS § 560:5-305 and/or §560:5-406 shall file a report with the court and servea copy of the report only upon those personsauthorized to receive such report pursuant to HRS §560:5-307 and/or § 560:5-407 or pursuant to an orderof the court, within 30 days after the date the KokuaKanawai was appointed or within 30 days after thedate responses to the petition are due, whichever islater. Any party objecting or responding to theKokua Kanawai's report shall file an objection orresponse to reject or confirm, in whole or in part, thereport and shall serve the objection or response onlyupon those persons authorized to receive such reportpursuant to HRS § 560:5-307 and/or § 560:5-407 orpursuant to an order of the court, within 10 days afterthe date the Kokua Kanawai's report is filed.

(2) OBJECTION OR RESPONSE TO OBJECTION OR

RESPONSE. Any party objecting or responding to anobjection or response shall file an objection orresponse and serve it on all counsel who haveappeared in the proceeding within 10 days after theresponses or objections to the petition are filed, or 72hours prior to the time set for the hearing asoriginally set, whichever is earlier, provided that inmatters for which the court has appointed a master orKokua Kanawai, the following provisions apply:

(A) Objection or Response to Objection orResponse to Master's Report. Any party objecting orresponding to an objection or response to a master'sreport shall file the objection or response and serveit on all counsel who have appeared in theproceeding within 20 days after the date the master'sreport is filed.

(B) Objection or Response to Objection orResponse to Kokua Kanawai's Report. Any partyobjecting or responding to an objection or responseto a Kokua Kanawai's report shall file an objection orresponse and shall serve it only upon those personsauthorized to receive such report pursuant to HRS §560:5-307 and/or § 560:5-407 or pursuant to an orderof the court, within 20 days after the date the KokuaKanawai's report is filed.

(3) SERVICE ON WHOM; DELIVERY OF COPY TO

JUDGE'S CHAMBERS. Any party filing an objection orresponse (including an objection or response to anobjection or response) shall also serve it on all otherinterested persons who have not filed a waiver ofnotice, even though service may not be completedbefore the time set for hearing, and shall deliver acopy of the file-marked objection or response to thepresiding judge's chambers; provided that in mattersfor which the court has appointed a Kokua Kanawaipursuant to HRS § 560:5-305 and/or § 560:5-406, theobjection or response shall be served only upon thosepersons authorized to receive such report pursuant toHRS § 560:5-307 and/or § 560:5-407 or pursuant toan order of the court.

(4) GUARDIAN AD LITEM. A guardian ad litemappointed by the court in any matter shall complywith the same response dates as any other party,unless otherwise ordered by the court.

(5) SHORTENING OR EXPANDING TIME. Thecourt for good cause may shorten or expand the timerequirements of these rules to effectuate the efficientadministration of estates.

COMMENTARY:To prevent surprises at hearings, to

improve the efficiency of the judicialprocess, and to fairly put parties on notice ofthe position of all parties prior to thehearing, objections and responses must befiled within 30 days of service of the petition.This expands the 20-day answer requirementof HRCP 12(a); the longer time period is


(Release: 06/06) HPR–8A

provided because most interested persons inprobate, guardianship and trust proceedingsare individuals who are usually notrepresented by counsel and who often liveout of state. In addition, many proceedingshave mandatory notice provisions, whichoften take more than 20 days to satisfy. Therule outlines the response requirementswhen a master or Kokua Kanawai isappointed and is intended to provide allparties with special rules for filingresponses and objections in a manner thatwill allow cases to proceed efficiently.Attempts should be made to serve all otherinterested parties as well, but the nature ofprobate and trust proceedings, withp o t e n t i a l l y m a n y b e n e f i c ia r i esgeographically dispersed, makes arequirement of service on everyone prior tothe hearing impractical.

When a hearing is continued from theoriginally scheduled date, pleadings are duewithin the original time unless the court byorder permits an expansion of time, to bemeasured by reference to the date to whichthe hearing is continued.

The court is granted the power toshorten any of the time requirements forgood cause, such as to facilitate the closingof a sale of property, to distribute propertyor to settle a litigated or negotiated claim.

(d) Additional Time After Service by Mail.Whenever a person has the right or is required to actwithin a prescribed period after the service of anotice or other paper upon the person and the noticeor paper is served upon the person by mail, two daysshall be added to the prescribed period.

COMMENTARY:This rule conforms the timing

requirements with respect to mailings toother 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 April28, 2006, effective July 1, 2006.)

[Next page is HPR--9.]



IV. HEARINGS

Rule 11. TELEPHONE CONFERENCECALL HEARINGS.

(a) Permissibility. The court, at its discretion,may allow a petition or other pleadings to be heardby telephone conference call.

(b) Arranging Conference Call. The party whorequests the telephone conference call shall beresponsible for arranging the telephone conferencecall with all parties and the telephone conference calloperator and ensuring that the call is arranged andready for court participation at the time appointed forthe hearing.

(c) Procedure. Prior to the start of theconference call, the clerk shall call the case in thecourtroom and outside the courtroom or by publicaddress system and direct anyone appearing for thehearing to the appropriate location for the hearing.

COMMENTARY:These rules formalize the procedures

already in use in the Second, Third, andFifth Circuits, and make them available tothe First Circuit, in the court's discretion.Their goal is to decrease costs ofproceedings and improve efficiency byavoiding having parties and attorneys fromother islands, or remote areas of an island,fly to the island where court is in session ordrive long distances for simple matters. Theperson who requested the conference callshall be responsible for all arrangementswith a conference operator and the partiesand attorneys to ensure that the call is madeto the court with all parties on line at theappropriate time.

Rule 12. RESERVED.

Rule 13. CONTINUANCES.(a) By the Court. The court in its discretion

may continue any hearing to a later date and time(1) when it appears from the record that requiredfilings, notice, or procedures have not beencompleted prior to the hearing, (2) when a report ofa court-appointed master, guardian ad litem, KokuaKanawai, or appraiser cannot or will not be ready bythe hearing date, or (3) when in the interest of

justice, judicial efficiency, or fairness, a continuancewill permit all parties to the proceeding to beproperly and fully represented. If a continuance isimposed by the court, the court shall notify counselfor the petitioner and instruct counsel to submit anamended notice of hearing, with the new hearingdate.

COMMENTARY: Continuances by the court are rare;

usually they are only imposed when a flagsheet has not been presented to the court ontime; where other documents (such as proofof service) are missing, the hearing is heldand the documentary deficiency brought tothe attorney's attention, giving the attorneythe opportunity to point out if a documenthas in fact been filed but not delivered to thefile in time. Requiring that flag sheets befiled prior to the hearing should helpeliminate a portion of those continuances.Sometimes the deficiency is not one of theattorney's or party's own making; adocument may have been misplaced ormisrouted at the court. Parties may havetraveled from off island or taken off timefrom work or school to attend the hearing.By putting a brief explanation of the reasonfor continuance on the court calendar, theattorney can either catch an error or rectifyan omission in time to get the matterreinstated at the original hearing time. Thiswould improve the efficiency of the judicialsystem, and help alleviate the congestedcalendar, by eliminating having somematters continued over to future hearingdates, which often prevents new mattersfrom being scheduled for those future dates.

This rule would also allow the court tocontinue the hearing when justice demands;for example, when an heir or beneficiaryappears without counsel and may want toobject to the petition.



(b) By Request of the Parties. Any party,master, or guardian ad litem requesting a continuanceshall file a petition to continue the hearing date,accompanied by an affidavit of counsel clearlysetting forth the basis for continuance, and saidpetition for continuance shall be heard on theoriginal hearing date, unless otherwise ordered by thecourt.

The party obtaining a continuance shall prepareand submit to the court an Amended Order SettingTime and Place of Hearing and shall serve thefile-marked Amended Order on all parties who haveappeared in the matter. Counsel may request aspecific hearing date by way of cover letter ortransmittal memorandum attached to the AmendedOrder, but if the court has not yet set the time andplace of hearing, counsel shall submit a proposedorder with the hearing date and time in blank.

COMMENTARY:Continuances by the parties are

confusing, and there are no standardprocedures at this time. This rule providesguidance and certainty to the system. Anyparty may seek a continuance, but thatrequest, unless otherwise ordered by thecourt, will be heard at the original time setfor the hearing. By using the originalhearing date to hear any petition forcontinuance, the court may proceed with theoriginal petition if the continuance is notgranted. This rule also clarifies that theperson obtaining the continuance is toprepare, file, and serve an amended ordersetting time and place of hearing, althoughthe order is to be presented to the court withthe date and time left blank for the court tofill in.

(c) Effect of Continuance on Response Time.Unless otherwise ordered by the court, a continuanceshall not enlarge the time in which to file responsivepleadings, memoranda, or other documents otherthan procedural documents.

COMMENTARY:This rule would eliminate using a

continuance as a means of buying time torespond to a pleading and would increase

judicial efficiency by eliminating anincentive to continue. Parties would have tohave their cases prepared for the originalhearing date and could not use thecontinuance delay to improve theirpositions. This rule also clarifies thesituation when a specific deadline is set bystatute, rule, or stipulation, such as therequirement that overbids in a confirmationof sale proceeding be delivered to the courtprior to the time set for the hearing. Acontinuance for failure to file a flag sheet intime would not give other prospectivebidders additional time in which to submitbids.

Rule 14. C O N S O L I D A T I O N O FPROCEEDINGS.

The court may upon petition of any party orderthat proceedings involving essentially the sameparties be consolidated for hearing; and it may makesuch orders concerning proceedings therein as maytend to avoid unnecessary costs or delays. Anypetition to consolidate must be filed in allproceedings sought to be consolidated.

COMMENTARY:Under prior law, the family court had

exclusive jurisdiction over all guardianshipsof the persons. Under the new guardianshipstatute, specifically HRS § 560:5-106, theprobate court now has concurrentjurisdiction over guardianships of adultpersons (but not minors) where there is alsoa conservatorship proceeding.

New Rule 100(b) provides that a partymay file a single petition in probate court toinitiate a guardianship of an adult personand a conservatorship of the same adultperson. It is anticipated that an action toinitiate a guardianship for an adult personbut not a conservatorship for the same adultperson will be filed in family court and thatan action to initiate a conservatorship for anadult person but not a guardianship for thesame adult person will be filed in probatecourt. If separate proceedings are filed (orfor those matters filed before January 1,2005 for guardianship of the person for an



adult and guardianship of the property forthe same adult), then the court may permitconsolidation of guardianship andconservatorship proceedings concerning thesame adult person in probate court.(Commentary amended February 16, 2005,

effective nunc pro tunc January 1, 2005.)

Rule 15. PROOF OF OFFICIAL RECORD.(a) Authentication.(1) DOMESTIC. An official record kept within the

United States or any state, district, commonwealth,territory, or insular possession thereof, or within thePanama Canal Zone, or the Trust Territory of thePacific Islands, or an entry therein, when admissiblefor any purpose, may be evidenced by an officialpublication thereof or by a copy attested by theofficer having the legal custody of the record, or bythe officer's deputy, and accompanied by a certificatethat such officer has the custody. The certificate maybe made by a judge of a court of record of the districtor political subdivision in which the record is kept,authenticated by the seal of the court, or may bemade by any public officer having a seal of officeand having official duties in the district or politicalsubdivision in which the record is kept, authenticatedby the seal of that person's office.

(2) FOREIGN. A foreign official record, or anentry therein, when admissible for any purpose, maybe evidenced by an official publication thereof; or acopy thereof, attested by a person authorized to makethe attestation, and accompanied by a finalcertification as to the genuineness of the signatureand official position (A) of the attesting person, or(B) of any foreign official whose certificate ofgenuineness of signature and official position relatesto the attestation or is in a chain of certificates ofgenuineness of signature and official positionrelating to the attestation. A final certification maybe made by a secretary of embassy or legation,consul general, consul, vice consul, or consular agentof the United States, or a diplomatic or consularofficial of the foreign country assigned or accreditedto the United States. If reasonable opportunity hasbeen given to all parties to investigate theauthenticity and accuracy of the documents, the courtmay, for good cause shown, (A) admit an attestedcopy without final certification or (B) permit theforeign official record to be evidenced by an attested

summary with or without a final certification.(b) Lack of Record. A written statement that

after diligent search no record or entry of a specifiedtenor is found to exist in the records designated bythe statement, authenticated as provided insubdivision (a) (1) of this rule in the case of adomestic record, or complying with the requirementsof subdivision (a) (2) of this rule for a summary inthe case of a foreign record, is admissible asevidence that the records contain no such record orentry.

(c) Other Proof. This rule does not prevent theproof of official records or of entry or lack of entrytherein by any other method authorized by law.

COMMENTARY:These rules clarify the proof needed

when dealing with records from outside thestate and is particularly important inproving foreign wills and trusts and vitalstatistics. This clarifies that a certified copyof a domestic record is sufficient, while anexemplified copy is only necessary whendealing with foreign documents.

(d) Non-English Documents. A partypresenting a non-English document to the court shallattach to it (1) an English translation of the documentand (2) an affidavit of the individual who preparedthe translation certifying as to the accuracy of thetranslation and the qualifications of the individual.

COMMENTARY:This rule establishes the method by

which a foreign-language document (such asa will or death certificate) may be presentedto the court. All such documents must beaccompanied by an English translation andan affidavit of the person preparing thetranslation. This rule allows parties to selecttheir own interpreters for documenttranslation, as long as such person canestablish competency in the affidavit.



(e) Interpreters. The court may appoint aninterpreter of its own selection or recommended bya party and may fix the interpreter's reasonablecompensation. The court may direct one or more ofthe parties to pay the compensation or may tax thecompensation as costs.

COMMENTARY:There is currently uncertainty in probate

practice as to how to get documentstranslated. This will allow the court toapprove of an interpreter that the partiescan then rely on.

Rule 16. DETERMINATION OF FOREIGNLAW.

A person who intends to raise an issueconcerning the law of another state or a foreigncountry shall give notice in the pleadings or otherreasonable written notice. The court, in determiningthe law of another state or country, may consider anyrelevant material or source, including testimony andaffidavits of law practitioners in that jurisdiction,whether or not submitted by a party or admissibleunder the Hawai#i Rules of Evidence, HRS Chapter626. The court's determination shall be treated as aruling on a question of law.

COMMENTARY:This rule provides a means for the court

to obtain information concerning and to ruleon the applicable law of anotherjurisdiction. This is of primary importancein the probate of wills, where the validity ofexecution and form of the will is dependentupon the law of the jurisdiction where thewill was signed. In such an instance, anaffidavit of an experienced attorney in thatother jurisdiction could be relied upon bythe court.

Rule 17. WITHDRAWAL OF PLEADING.(a) Procedure. A party may withdraw a petition

or objection that has been scheduled for hearing bygiving immediate notice of the withdrawal to thecourt and requesting that the hearing be stricken fromthe calendar. The party shall immediately contact allother counsel who appeared in the matter to notifythem that the hearing is stricken. Within 72 hours of

notifying the court of the withdrawal, but in anyevent no less than 72 hours prior to the scheduledhearing date, the party shall file a "Withdrawal ofPetition" or "Withdrawal of Objection" clearlysetting forth (1) the title of the pleading beingwithdrawn, (2) the time and date of the hearing,(3) the name of the presiding judge who wasscheduled to hear the matter, (4) in the case of awithdrawal of a petition, that all court-appointedofficials have been paid in full, and (5) the party'sattorney's signature. File-marked copies of theWithdrawal shall be served on opposing counsel assoon as available. The court in its discretion mayimpose sanctions on a withdrawing party who fails tocomply with this rule.

(b) Effect of Withdrawal on Hearing. When apetition is withdrawn, the hearing on the petitionshall be stricken, except where the withdrawal is theresult of a settlement or compromise by the parties.When an objection is withdrawn, the hearing shallcontinue as scheduled to consider the relief requestedin the petition. Where the withdrawal of a pleadingis the result of a settlement or compromise, thehearing shall be conducted as scheduled and theparties shall describe the settlement on the record tothe extent required by the court.

COMMENTARY:This clarifies the procedures required to

strike a hearing date. A settled dispute shallbe entered into the record to prevent latermisunderstanding. This rule does not applyto contested matters assigned to the civiltrials calendar.



Rule 18. RULES OF EVIDENCE.The Hawai#i Rules of Evidence, HRS Chapter

626, shall apply to all proceedings. However, thecourt shall interpret and apply the rules broadly andliberally in the interest of fairness and justice andwith the goal of judicial efficiency.

COMMENTARY:By their terms (Rule 1101), the Hawai#i

Rules of Evidence apply to probate, trust,and guardianship and conservatorshipmatters. However, the court, in exercising itsequitable powers, has generally grantedwide latitude in the admission of evidence,without tying itself up with technicalreadings of the rules. This ruleacknowledges the effect of the Rules ofEvidence, while encouraging broad andliberal application by the court. Thecommittee felt that this clarification of thecourt's discretion was necessary.(Commentary amended April 28, 2006, effective

July 1, 2006.)

V. CONTESTED MATTERS

Rule 19. DEFINITION.A contested matter is any one in which an

objection has been filed. The contested matter shallbe limited to facts and issues in dispute, and shall notaffect other issues or pleadings before the court withrespect to the same proceeding that are not indispute, provided that no party is prejudiced thereby.

COMMENTARY:This rule sets the stage for the rules that

follow. Of importance is the recognition thata contested issue can be separated from thenormal progress of the estate,conservatorship, guardianship, or trust, anddealt with separately, while normaluncontested matters may continue to beaddressed in normal course while thecontested issue is resolved. In this way, aproceeding is not completely put on holdbecause of a dispute about one issue.(Commentary amended April 28, 2006, effective

July 1, 2006.)

Rule 20. DISPOSITION OF CONTESTEDMATTERS.

(a) Assignment. The court by written order mayretain a contested matter on the regular probatecalendar or may assign the contested matter to thecivil trials calendar of the circuit court.

COMMENTARY:This rule divides contested matters into

two classes: those that the probate court willresolve and those that the court will refer tothe civil trials calendar. It is anticipated thatthe court will assign to civil trials the morecomplex and time consuming cases,although the court may retain such a case ifit involves technical issues that are withinthe experience and expertise of the probatecourt (and therefore involve less time andeffort to educate a trial judge). By requiringa written order of assignment, which wouldideally be a preprinted form, a clear recordis created, and the court then has theopportunity to decide what procedures willbe used if the contested matter is retained.(See Rule (d) below.)

(b) Guideline for Assignment. The court mayuse as a guideline on whether to assign a contestedmatter to the civil trials calendar the expected lengthof the hearing and whether it will take more thanone-half day. The court may also assign other mattersto the civil trials calendar, with or without thestipulation of the parties, and the court, at the requestof all parties, may retain on the probate calendar acontested matter that would otherwise be assigned tothe civil trials calendar, if the court determines thematter can be handled more efficiently andeffectively. When the court assigns a contestedmatter to either calendar, the court may set a statusconference date, which the court clerk will note inthe order assigning the contested matter, or in aseparate status conference order.

COMMENTARY:This rule provides standards for

assigning contested matters to either theprobate calendar or the civil trials calendar,with a great deal of flexibility built in. Theflexibility is essential, considering the great



difference in procedures available and thelikelihood that a civil trial would take manymonths to get scheduled. A status conferencedate may be set at the same time theassignment is made, to prevent further delayin hearing the matter.

(c) Effect of Assignment to Civil TrialsCalendar. The Hawai#i Rules of Civil Procedure andthe Rules of the Circuit Courts will apply to allcontested matters assigned to the civil trials calendar.However, no right to jury trial shall be created byassignment to the civil trials calendar where such aright does not exist in the underlying proceeding.When a matter is assigned to the civil trials calendar,then for all procedural purposes, the party objectingto the petition shall be considered the plaintiff, theobjection is to be treated as a complaint, and thecomplaint shall be deemed to have been filed on thedate of the assignment to the civil trials calendar.

COMMENTARY:This rule makes clear that a contested

matter assigned to civil trials is to be treatedthe same as, and be subject to the same rulesas, a normal civil action. However, becausethe right to jury trial is limited under theUniform Probate Code, assignment of acontested matter to civil trials does notthereby give rise to a right to jury trial.

The party who files the objections in amatter shall be considered the plaintiff forpurposes of the civil procedural rules, butnot necessarily for substantive issues as tothe burden of proof or burden to go forward.

(d) Procedures in Retained ContestedMatters. Whenever the court retains jurisdiction ofa contested matter as a probate proceeding, the courtin the order of assignment may, at the request of theparties, designate and order that any one or more ofthe Hawai#i Rules of Civil Procedure and/or theRules of the Circuit Courts shall be applicable insuch matter.

COMMENTARY:This rule allows the court to adopt any

of the Rules of Civil Procedure or Rules ofthe Circuit Court to govern the conduct of

the contested matter. It is anticipated thatmost, if not all, of the rules regardingdiscovery, summary judgment, trialtestimony, and pretrial practices will beadopted. Currently, contested matters inprobate do not clearly give rise to the rightto discovery, and it is rare for the court tospecifically address the issue. Other issuesnot in dispute, and regular settlement oradministration of the probate, guardianship,or trust estate, shall continue to the extentpossible without regard to the contestedmatter.

(e) Effect on Underlying Matter. Thedesignation of an issue as a contested matter and theassignment thereof to the civil trials calendar or theprobate calendar shall not affect the underlyingproceeding, and the proceeding shall continue to theextent that such administration is not inconsistentwith the issues being contested.

(f) Appeals. An order resolving the issues in acontested matter shall be reduced to judgment inaccordance with Rule 34 of these rules and may beappealed as provided therein.

COMMENTARY:This rule is to clarify that orders

disposing of an issue are appealable; this isso that contested issues can be resolvedquickly and a proceeding terminated as soonas possible.

(g) Termination of Assignment. When thecontested matter is finally resolved, whether bysettlement, final unappealed order, or disposition onappeal, the assignment shall terminate and all mattersrelating to the proceeding shall thereafter becontrolled by these rules.

COMMENTARY:This rule is to make clear the

assignments of contested matters are limitedin scope to the matter actually contested,and the use of other rules or procedures notwithin the scope of these rules terminateswhen the contested matter is concluded.



Rule 21. RESERVED.

Rule 22. SUBPOENA.(a) For Attendance of Witnesses; Form;

Issuance. Every subpoena shall be issued by theclerk of the circuit court of the circuit in which theproceeding is pending under the seal of the court,shall state the name of the court and the title of theproceeding, and shall command each person to whomit is directed to attend and give testimony at a timeand place therein specified. Upon payment of allrequired fees the clerk shall issue a subpoena, or asubpoena for the production of documentaryevidence, signed and sealed but otherwise in blank,to a party requesting it, who shall fill it in beforeservice.

(b) For Production of Documentary Evidence.A subpoena may also command the person to whomit is directed to produce the books, papers,documents, or tangible things designated therein; butthe court, upon petition made promptly and in anyevent at or before the time specified in the subpoenafor compliance therewith, may (1) quash or modifythe subpoena if it is unreasonable and oppressive or(2) condition denial of the petition upon theadvancement by the person in whose behalf thesubpoena is issued of the reasonable cost ofproducing the books, papers, documents, or tangiblethings.

(c) Service. A subpoena may be served at anyplace within the state. A subpoena may be served: (1)anywhere in the state by the sheriff or the sheriff'sdeputy, or by any other person who is not a party andis not less than 18 years of age, or (2) in any countyby the chief of police or the chief's duly authorizedsubordinate. Service of a subpoena upon a personnamed therein shal l be made by delivering a copythereof to such person and by tendering to him or herthe fees for one day's attendance and the mileageallowed by law. When the subpoena is issued onbehalf of the state, or an officer or agency of thestate, fees and mileage need not be tendered.

(d) Contempt. Failure by any person withoutadequate excuse to obey a subpoena upon that personmay be deemed a contempt of the court from whichthe subpoena issued.

COMMENTARY:These rules are taken verbatim from

HRCP 45, except that HRCP 45(d) isexcluded, it being within the power of thecourt in a contested matter to adopt that rule(relating to subpoenas for depositions) if thecourt so desires. As written, these ruleswould apply only to subpoenas for testimonyat a hearing. They greatly expand the abilityof the probate court to obtain witnesses anddocuments that may be necessary to the fulland fair evaluation of the matter.

VI. EX PARTE PROCEEDINGS

Rule 23. MATTERS WHEN EX PARTEPROCEEDINGS APPROPRIATE.

Proceedings may be conducted on an ex partebasis (without notice or hearing) when:

(a) All interested parties who are entitled bystatute to notice of the petition join in the petition; or

(b) An emergency exists such that delay for ahearing would cause irreparable harm and the basisfor the emergency is supported by affidavit; or

(c) There is no controversy and the reliefrequested is automatic under statute or rule; or

(d) Other situations exist in the court's discretionthat warrant action without notice or hearing.

The party presenting a petition under paragraph(b) of this Rule 23 requiring immediate action of thecourt shall title the petition "Emergency Ex PartePetition for . . ." to distinguish it from any other formof ex parte petition.

COMMENTARY:This rule establishes, for the guidance of

counsel, the situations in which ex parteproceedings are appropriate.

Under paragraph (a) of this Rule 23, apetition may be granted when all personsentitled to notice of the petition join in thepetition; this may differ from personsdescribed as "interested persons" under



HRS § 560:1-201 either because a statutemay not require notice to all interestedpersons (for example, see HRS §560:-403(a) which requires notice to certainindividuals but not to creditors), or becausethe particular matter being heard does notaffect the interests of a person who isstatutorily defined as an interested person(for example, an unpaid creditor remains aninterested person until his or her claim isresolved, but that interest is not affected bya challenge to the validity of a will or codicilsince it matters not to the creditor whetherthe debtor/decedent died testate or intestate.It must be kept in mind that a person who isan interested person at the outset of aprobate may lose his or her status as suchwhen his or her interest has been resolved.For example, a specific devisee who hasreceived his or her devise or an heir who isnot a beneficiary of a will is an interestedperson at the hearing on the petition forprobate, because denying the petition anddeclaring an intestacy will result in aninheritance passing to the heir. Such an heirloses his or her status as an interestedperson once the will is admitted to probate,because a consequence of the admission ofthe will to probate is that he or she will notshare in the decedent's estate.

Differentiating between emergency exparte petitions in paragraph (b) of this Rule23 and those for which notice and hearingare just being waived will facilitatedocument handling by the court and helpexpedite processing of emergencydocuments. (Amended June 25, 2003, effective July 1, 2003.)

Rule 24. FORMAT AND PROCEDURE.A party submitting an ex parte pleading to the

court shall clearly state the relief being sought andthe facts and legal basis justifying it. The party shallattach to the petition an affidavit of counselexplaining the basis for the court issuing an order exparte and attach any exhibits relating to the reliefsought and a proposed form of order granting thepetition. The party shall file the petition, affidavit,and exhibits as one document and either attach the

order to the other documents or submit itsimultaneously with them, as a separate document.

The party shall present the ex parte petition tothe presiding judge directly, with a certificate ofservice stating that the petitioner will serve notice onall interested persons entitled to notice immediatelyafter filing of the order. If the petition is granted, theparty shall then cause all of the documents to be filedwith the clerk and then serve the petition and orderon all interested parties entitled to notice (unlessotherwise ordered by the court).

COMMENTARY:This rule follows general practice,

specifying the necessary elements to an exparte submission to the court. The order maybe attached to the petition and supportingdocuments or submitted separately, but atthe same time and as part of the same packetto the court. The rule also adopts aprospective certificate of service, which isotherwise very rare in probate courtpractice.

VII. ACCOUNTINGS

Rule 25. APPROVALS BY INTERESTEDPERSONS.

Prior to presentation of an accounting to thecourt for approval, the petitioner may secure andpresent with the petition for approval of accounts theapprovals of the accounting by interested persons. Ifall interested persons approve the accounting andtheir approvals accompany the petition, the petitionmay be presented and the accounting approved on anex parte basis. If approvals of fewer than allindividual interested persons are obtained and thepetitioner desires the court not to appoint a guardianad litem or master, then the petitioner's counsel shallsubmit an affidavit regarding the effort made tosecure approval of the interested persons and thecourt may appoint a guardian ad litem for any minor,unborn, and unascertained beneficiaries, and mayappoint a master to review the actions andaccounting of the fiduciary on behalf of the court.Where the accounting must be approved by theattorney general acting as parens patriae, the courtshall appoint a master to review the actions and



accounting of the fiduciary on behalf of the court.

COMMENTARY:The probate code no longer requires

that accountings be filed and approved bythe court. However, if accountings aresubmitted to the court for approval, theymust conform with Rules 25 and 26. Thisrule also encourages attempts by thepetitioner to obtain approvals of interestedpersons to an accounting prior to thepresentation of the accounting to the court.Where all interested persons have approved,the petition will be granted in the court'sdiscretion on an ex parte basis. If approvalscannot for some reason be obtained from allinterested persons, then counsel may elect tosubmit an affidavit regarding the failure todo so and request waiver of a guardian adlitem or master. Based on the affidavit, thecourt may appoint a master or guardian adlitem, but may not necessarily do so, andmay proceed without the approvals.Appointment of a master in charitable trustaccountings is automatic, because theAttorney General's office does not normallyreview accountings in detail.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 26. FORMAT AND CONTENT.All accountings to the court shall be typewritten

or prepared by computer and presented by petition,and shall include in the petition for a trust orconservatorship proceeding a brief description of theoperations and holdings of the trust or estate duringthe period of the accounting and a list of the namesand addresses of the current beneficiaries accordingto the fiduciary's records. Attached to the petition inall accountings shall be a complete financialaccounting for the period of accounting, including inorder (1) a brief summary at the beginning of theattachment summarizing receipts and disbursementsduring the accounting period, (2) a list of the assetsof the trust or estate at the end of the accountingperiod, including its value for administrationpurposes (the inventory value for probateaccountings and the current fair market value for allother accountings), (3) a summary explaining the

amount and basis of fiduciary fees taken or chargedduring the accounting period, (4) a detailedaccounting of the transactions of the trust or estateduring the accounting period, and (5) a copy of anyauditor 's report and auditor's management letterreceived by the trust or estate during or with respectto the accounting period. In addition, trustaccountings shall include as an exhibit once everyfive calendar years a copy of the controlling trustdocuments. The detailed accounting of transactionsmay summarize regular and minor transactions andtransactions that are internal to the accountingsystem being used, with a goal of eliminatingneedless detail and making the accounting easier tounderstand, while presenting sufficient informationto understand and track the transactions of the trustor estate.

COMMENTARY:This rule is partially the result of

concerns raised by the First Circuit Courtand discussed by an ad hoc committeecomposed of attorneys, accountants,masters, the attorney general's office, andall Hawai#i trust companies in the fall of1991. No agreement was reached by thatcommittee as to any one form of accounting,but the need for the element described initems (1)-(5) of the rule were believedimportant. This rule does not mandate anyform of detailed accounting, leaving that tothe fiduciary's discretion. By requiring theadditional exhibits (1)-(3) and any auditor'sreports, the precise form of the accounting isless important; the summary sheets willprovide the information at a glance thatmost interested parties want, while thedetailed accounting is available for thosewishing to delve into the minutiae of thedetailed transactions. This rule attempts toachieve a balance between that detail andease of understanding.

This rule will result in greater work forfiduciaries in producing the additionalpages required by (1)-(3), but those areanticipated to be only a few pages in length,and the added time and cost to produce themshould be offset by the time and cost saved



in challenges raised because a beneficiarycannot understand all of the detail.

Of great concern to the First CircuitCourt and the committee in 1991 wasdecreasing the amount of paper circulatedwith an accounting. A suggestion was thatthe fiduciary file with the court only thesummaries of (1)-(3) and any auditor'sreports under (5), retaining the detailedaccounting and giving it only to the master,attorney general, and any other interestedparty who requested it. Masters and theattorney general's office objected to anyaccounting system that did not provide a fulland complete copy of the detailedaccounting to them; the trust companiesobjected to not providing the detailedaccounting to the court, because the trustcompanies rely on the court records forstorage and do not save all detailedaccountings in their own records. Noconsensus was reached by the committee,therefore, on the content of the accountingfiled with the court and presented tobeneficiaries.

The requirement for a copy of thecontrolling trust documents once every fivecalendar years is adopted in recognition thattrust accountings can sometimes be quitelengthy and over time fill many volumes offiles. By having copies of the controllingdocuments filed on a regular basis, the courtand interested persons will not have to digback too deeply in the files to locate thecontrolling documents.(Amended April 28, 2006, effective July 1, 2006.)

Rule 27. REFERRAL TO MASTER.All charitable trust accountings shall be referred

to a master appointed by the court for review,analysis, and report to the court. In the event of adispute among beneficiaries of a private trust orestate, the court may appoint a master for the samepurposes.

COMMENTARY:This rule echoes current court practice.

It allows the court discretion in appointinga master for private trusts and estates,depending upon the circumstances, while

always requiring a master in a charitabletrust accounting.

VIII. MASTERS AND GUARDIANSAD LITEM

Rule 28. APPOINTMENT.(a) Master. The court may appoint a master to

review any petition or dispute before the court and toreport the recommendations of the master to thecourt. The master shall serve as a representative ofthe court and shall be a person who has no conflict ofinterest with any party or issue in the proceeding.

(b) Guardian Ad Litem. The court may appointa guardian ad litem for one or more minor, unborn,unascertained, or incompetent persons not otherwiserepresented in an action and may make such otherorder as it deems proper for the protection of aminor, unborn, unascertained, or incompetent person.The guardian ad litem shall represent the interests ofthe person or persons for whom the guardian ad litemis appointed. Where the interests of different classesof unrepresented beneficiaries differ, the court mayappoint a separate guardian ad litem to representeach class of interests.

(c) Order of Appointment. The petitioner shallprepare and present to the court in blank an orderappointing master or guardian ad litem, as applicable,for charitable trust accountings, petitions forinstructions, and actions involving non-charitabletrusts or estates in which there are minor, unborn, orunascertained beneficiaries.

(d) Notice to Official. When a master orguardian ad litem is appointed by the court withrespect to any petition, the petitioner shall givenotice of appointment and copies of all relevantpleadings to the master or guardian ad litem within 5days of appointment. Thereafter, all parties shallserve copies of all pleadings filed in the proceedingon the master or guardian ad litem until theappointment is terminated.

(e) Termination of Appointment. Theappointment of a master or guardian ad litemautomatically terminates upon the entry of an orderor judgment on the issues for which the master or theguardian ad litem is appointed. A guardian ad litemmay, with the approval of the court, appeal an orderor judgment of the court and pursue such appeal on



behalf of the beneficiary or beneficiaries that theguardian ad litem represents.

COMMENTARY:This rule clarifies the procedures with

respect to the appointment of a master orguardian ad litem, and their roles. Thepetitioner is charged with notifying theofficial of appointment and supplying copiesof all relevant documents.

Rule 29. ROLE OF MASTER.Unless otherwise ordered by the court, the master

shall review the operations of the fiduciary in light ofthe terms of the controlling document, as well as thefinancial transactions of the trust or estate. Thefiduciary shall supply to the master a copy of theaccountings and any masters’ reports for the priorthree accounting periods and shall make available forthe master’s inspection all accounting records for thecurrent accounting period. The master shall haveunlimited access to the books and records of thefiduciary with respect to the trust or estate that arenot protected by privilege, including minutes of allmeetings, and may interview any employee of thefiduciary regarding the trust or estate as the masterdeems appropriate. The master shall submit a writtenreport of the master’s findings to the court and servea copy on all interested persons. Interested personsmay file objections or responses to the master’sreport, and parties may object or respond to suchpleadings, within the time limits set forth in Rule10(c).

COMMENTARY:This rule clarifies the role of the master,

as many masters currently are unsure oftheir position and limit themselves to a strictreview of the financial accounting presented.While there is a presumption of good faithand regularity that applies to accountings,In re Estate of James Campbell, Deceased,42 Haw. 586, 607 (1958), the master servesas the eyes and ears of the court, andtherefore should review the entire scope ofthe fiduciary's performance during theaccounting period pursuant to the governinginstrument. In order to properly fulfill the

obligation, the master is granted broadaccess to the records and staff of thefiduciary. (Amended November 2, 1995, effective January

2, 1996; further amended May 17, 2004, effectiveJuly 1, 2004.)

Rule 30. RESERVED.

Rule 31. COMPENSATION AND EXPENSES.The court shall set the compensation of masters,

guardians ad litem, and Kokua Kanawai and orderthe payment of such compensation from the assets ofthe trust or estate or, when appropriate, taxed inwhole or in part to a party to the proceeding or to aparty’s attorney. In setting compensation, the courtmay consider the knowledge, skill, and expertise ofthe official; the difficulty of the assignment; thequality of the work performed; and the time spent bythe official on the assignment. The court shall alsoorder the reimbursement of the reasonable expensesand costs of the master, guardian ad litem, or KokuaKanawai incurred in fulfilling the official's duties.With prior court approval upon petition and afternotice and hearing (which notice and hearing may bewaived by the court in appropriate circumstances),the master, guardian ad litem, or Kokua Kanawaimay retain the services of attorneys, accountants, orother professionals or agents. If the compensationand/or reimbursement is not paid within a reasonabletime, the official may petition for an order to showcause.

COMMENTARY:Compensation of court-appointed

officials has never been very clear. This ruleclarifies that court-appointed officials(including Kokua Kanawai appointed underRule 113) will be paid, normally from thetrust or estate, but the court can direct aparty to pay in appropriate situations. Thisalso clarifies that the official's reasonableout-of-pocket expenses will be reimbursed,and that the official may hire others to assistin carrying out the official's duties, wheresuch employment and the terms ofemployment have been approved in advanceby the court. Normally employment ofassistants by the official will require notice



and hearing, but the rule allows the court todispense with notice and hearing wherecircumstances warrant (such as in hiring anattorney to pursue an appeal of a courtorder which has strict time limitations).General excise tax will not be separatelyapproved of by the court, but should be builtin to the compensation sought by the official.(Amended April 28, 2006, effective July 1, 2006.)

IX. ORDERS

Rule 32. SETTLEMENT OF ORDERS.Within 10 days after a decision of the court,

including any interlocutory order, the prevailingparty, unless otherwise ordered by the court, shallprepare an order in accordance with the decision andseek the approval as to form of opposing counsel,any master and guardian ad litem, and any pro seinterested persons in opposition who appeared at thehearing thereon and deliver to the court the originaland one copy. If approval as to form is not securedwithin 10 days, the prevailing party shall serve acopy upon each party who has appeared in the actionand deliver to the court the original and one copy,along with notice of service on the other parties. Ifany party objects to the form of a proposed order,that person shall within 5 days serve upon theprevailing party and deliver to the court a statementof that party's objections and the reasons for failingto approve, if any, the form of the party's proposedorder. Thereafter, the court shall settle the order.Approval as to form shall not affect the right of theapproving party to appeal from any order issued.

COMMENTARY:This rule provides a definite method of

settling orders in probate proceedings andincorporates the civil rule of approval ofcounsel, which is not currently practiced inprobate.

Rule 33. FORM OF ORDERS.All parties submitting orders for the court's

signature pursuant to a formal hearing shall:(a) indicate the hearing date or dates and the

name of the hearing judge under the case number andcharacter of the document;

(b) have a blank date line and signature line forthe judge, with the words "Judge of theAbove-Entitled Court" and the judge's staff shallprint, type or stamp the name of the judge under thesignature line;

(c) note on the bottom of the court's signaturepage the case number, abbreviated case name, andtitle of the order, separated from the rest of the texton the page by a solid horizontal line; and

(d) when the court rules on a matter subject tothe receipt of further documentation, submit therequired documentation with a brief writtenexplanation of what transpired at the hearing and thereason for submission of the documentation.

COMMENTARY:This rule standardizes current court

practice. On occasion the court will grant apetition even though some of the necessarypaperwork (such as a receipt for notice,affidavit in support of extraordinary fees, orproof of service) has not been filed. In suchcircumstances, the party presenting theorder should clip the requested documenta-tion to the order when it is presented to thecourt, along with an explanation of thecondition imposed at the hearing.

Rule 34. ENTRY OF JUDGMENT,INTERLOCUTORY ORDERS,APPEALS.

(a) Entry of Judgment. All formal testacyorders, orders of intestacy and determination of heirs,orders establishing conservatorship and/orguardianship, and orders establishing protectivearrangements shall be reduced to judgment and thejudgment shall be filed with the clerk of the court.Such judgments shall be final and immediatelyappealable as provided by statute. Any other orderthat fully addresses all claims raised in a petition towhich it relates, but that does not finally end theproceeding, may be certified for appeal in the mannerprovided by Rule 54(b) of the Hawai#i Rules of CivilProcedure.

(b) Interlocutory Orders. In order to appealfrom any other order prior to the conclusion of theproceeding, the order must be certified for appeal inaccordance with Section 641-1(b) of the Hawai#iRevised Statutes.



(c) Final Judgment Closing Proceeding. Atthe conclusion of the proceeding, a final judgmentclosing the proceeding shall be entered and filed withthe clerk of the court, at which time all prioruncertified interlocutory orders shall becomeimmediately appealable.

(d) Appeals. Final judgments as to all claimsand parties, certified judgments, certified orders, andother orders appealable as provided by law may beappealed pursuant to the Hawai#i Rules of AppellateProcedure applicable to civil actions.

COMMENTARY:Probate practice has never had decrees,

judgments, and other assorted forms ofdecision that are referred to in the rules ofcivil procedure. Therefore, it has beenunclear when a probate order is final forappeal purposes, other than a formal testacyorder, which is specifically appealable. HRS§ 560:3-412. The committee recommended arule that would have conformed to thepractice of allowing dispositive orders to beappealed, rather than waiting for the finalorder settling and closing the estate, ineffect, eliminating interlocutory orders. Rule34 is written to conform probate practice tothe policy against piecemeal appeals, see,e.g., Jenkins v. Cades Schutte Fleming &Wright, 76 Haw. 115, 869 P.2d 1334 (1994),to bring certainty to the timing of when andhow an appeal can be taken, and to complywith the provisions of HRS § 641-1.

Original Rule 34 was misread to requireall probate orders to be reduced tojudgment, even if an immediate appeal wasnot contemplated. This revised rule clarifiesthat only certain probate court orders mustbe reduced to judgment and are thereafterimmediately appealable when an appeal isallowed by statute. Those orders include: (1)formal testacy orders and ordersdetermining that the decedent left no validwill and determining heirs, which are finaland subject to immediate appeal under HRS§ 560:3-412; (2) orders establishingconservatorships under HRS § 560:5-401;(3) orders establishing protectivearrangements under HRS § 560:5-412; and

(4) orders allowing a final report of aconservator under HRS § 560:5-420(a). Allother orders may be certified for appealpursuant to either Rule 54(b) or HRS § 6 4 1 - 1 ( b ), d e p e nd i n g u p o n t hecircumstances, but is not necessary to file aseparate judgment if an immediate appeal isnot contemplated. (Amended November 2, 1995, effective January

2, 1996; further amended April 28, 2006, effectiveJuly 1, 2006.)

Rule 35. ORDER FOR SPECIFIC ACTS;VESTING TITLE.

If an order directs a party to execute aconveyance of land or to deliver deeds or otherdocuments or to perform any other specific act andthe party does not comply within the time specified,the court may direct the act to be done at the cost ofsuch party by some other person appointed by thecourt, which will have the same effect as if done bythe party. On petition of the party entitled toperformance, the clerk shall issue a writ ofattachment or sequestration against the property ofthe disobedient party to compel obedience to theorder. The court may also in proper cases adjudge theparty in contempt. If real or personal property iswithin the state, the court in lieu of directing aconveyance thereof may enter an order divesting thetitle of any party and vesting it in others and suchorder has the effect of a conveyance executed in dueform of law. When any order is for the delivery ofpossession, the party in whose favor it is entered isentitled to a writ of execution or assistance uponapplication to the clerk.

COMMENTARY:This conforms to the Rules of Civil

Procedure.



Rule 36. RELIEF FROM ORDER.(a) Clerical Mistakes. The court may correct

clerical mistakes in orders or other parts of the recordand errors arising from oversight or omission at anytime of its own initiative or on the petition of anyinterested person and after such notice, if any, as thecourt orders. During the pendency of an appeal, suchmistakes may be corrected before the appeal isdocketed, and thereafter while the appeal is pendingmay be corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; ExcusableNeglect; Newly Discovered Evidence; Fraud, Etc.Upon petition and upon such terms as are just, thecourt may relieve an interested person from an orderor judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusableneglect;

(2) newly discovered evidence which by duediligence could not have been discovered in timebefore the order was issued;

(3) fraud (whether heretofore denominatedintrinsic or extrinsic), misrepresentation, or othermisconduct of an adverse party;

(4) the order is void;(5) the order has been satisfied, released, or

discharged, or a prior order upon which it is basedhas been reversed or otherwise vacated, or it is nolonger equitable that the order should haveprospective application; or

(6) any other reason justifying relief from theoperation of the order. The petition shall be madewithin a reasonable time, and for reasons (1), (2), and(3) not more than one year after the order orproceeding was entered or taken. A petition underthis subdivision (b) does not affect the finality of anorder or suspend its operation.

(Amended May 30, 2006, effective July 1, 2006.)

COMMENTARY:This rule complies substantially with

HRCP 60. It does not override any statutoryperiod of limitations to probate a will ordetermine heirs.

X. MODEL FORMS

Rule 37. AVAILABILITY.The courts of the various circuits, acting

unanimously through their administrative judges,may approve model forms of common probate,conservatorship, guardianship, trust, andmiscellaneous proceeding pleadings and orders,which do not have to conform to the formatting rulesapplicable to individually prepared documents.

COMMENTARY:Use of model forms would greatly lessen

preparation time, mistakes, and courtprocessing time of common court pleadings.The court should approve model forms ofcommon petitions, notices, and orders, butthe probate code no longer requires that thecourt provide such forms. This rule requiresthe administrative judges of all four circuitcourts to approve the forms so that practiceamong the circuits will be consistent.(Amended November 12, 1997, effective


Rule 38. USE OF FORMS.Counsel shall follow substantially in form and

content any approved model forms, making changesonly for the specific facts and circumstances of acase.

COMMENTARY:Once a model form has been approved,

it should be substantially followed in form,order of presentation, and contentthroughout the state to assure conformity ofapplication. However, the committeedecided not to mandate use of preprintedforms, given strong public opposition andthe difficulty of producing forms that couldbe used with all computer software. Thus,attorneys need not use any preprinted formbut should closely follow any model formspublished.



XI. ATTORNEYS' AND FIDUCIARY'S FEES

Rule 39. STATUTORY FEES; TIME OFPAYMENT.

Fees set by statute may be paid by the fiduciaryand charged to the estate when they are earned, inregular installments over the accounting period, orwhen finally calculable. The liquidity of the estatemay determine when the fees may be paid.

COMMENTARY:Trustee's fees are still governed by

statute. See HRS § 607-18. Therefore, thisrule will still govern the payment ofstatutory trustee's fees. All other fees will besubject to Rule 40.

Rule 40. N O N - S T A T U T O R Y A N DEXTRAORDINARY FEES.

(a) Amount. A fiduciary may pay fees forservices of a fiduciary, attorney, or other professionalthat are not set by statute or court rule as long as thefees are just and reasonable in amount for the scopeof services rendered. The reasonableness of the feesallowed shall be determined by all the facts andcircumstances of the work performed including thecomplexity or ease of the matter, the experience,expertise, and uniqueness of services rendered, theamount of time spent on the matter, and the amountcharged by others in similar situations.

(b) Timing of Payment. A fiduciary may paynon-statutory and extraordinary fees as they areearned, subject to repayment if any interested personobjects and if the court finds them excessive.

COMMENTARY:The issue of what a fair fee is and when

it gets paid is unsettled. This rule attempts toset forth some guidelines to providecertainty. Generally, professional fees,including those of an attorney, shall becompensated based on the types of servicesrendered. For example, where an attorneyperforms both legal and administrativeservices to an estate, the attorney shouldkeep track, account for, and billadministrative services separate from, andprobably at a lower rate from, the legal

services rendered. HRS § 560:3-721(a)requires the refund of compensation paid inexcess of that approved by the court.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 41. EVIDENCE AND NOTICE.Whenever there is an objection to the fees of a

fiduciary or attorney, or court approval of such feesis sought for any reason, the fiduciary or attorneywhose fees are at issue shall file an affidavit, settingforth the amount and basis of calculation of the feessought and any costs advanced which are to bereimbursed, at the same time as any petition seekingapproval of such fees or any response to a petitionobjecting to such fees. The affidavit shouldspecifically detail the charges for the services andcosts rendered to the date of the affidavit and theanticipated charges and costs to complete the matterthrough preparation, processing, and service of theorder. Any interested person may file with the courtand serve on the petitioner or its counsel an objectionto the fees and costs requested no later than 24 hoursprior to the hearing.

COMMENTARY:Under the new probate code, the fees of

an attorney or fiduciary are not subject tocourt review unless a party objects to thefees and review is sought. This revised rulerequires that, whenever court approval offiduciary or attorneys' fees is sought (eitherbecause a party objects or because a partywants such fees to be court-approved), anaffidavit of the person whose fees are atissue must be filed with the initial petition orresponse, as the case may be. Where thework for which the fees are sought is not yetcompleted (such as in petitions for approvalof accounts or for confirmation of sales), theaffidavit should be forth an estimate of thefees to be incurred through the conclusion ofthe hearing.(Amended November 12, 1997, effective

December 15, 1997.)



XII. MISCELLANEOUS PROVISIONS

Rule 42. CONFLICTS OF INTEREST.(a) Fiduciary as Attorney's Client. An attorney

employed by a fiduciary for an estate, guardianship,or trust represents the fiduciary as client as definedin Rule 503(a) of the Hawai#i Rules of Evidence andshall have all the rights, privileges, and obligations ofthe attorney-client relationship with the fiduciaryinsofar as the fiduciary is acting in a fiduciary rolefor the benefit of one or more beneficiaries or award.

(b) Relationship to Beneficiaries. An attorneyfor an estate, guardianship, or trust does not have anattorney-client relationship with the beneficiaries ofthe estate or trust or the ward of the guardianship, butshall owe a duty to notify such beneficiaries or wardof activities of the fiduciary actually known by theattorney to be illegal that threaten the security of theassets under administration or the interests of thebeneficiaries.

(c) Officer of Court. An attorney for an estate,guardianship, or trust is an officer of the court andshall assist the court in securing the efficient andeffective management of the estate. The attorney hasan obligation to monitor the status of the estate andto ensure that required actions such as accountingsand closing a probate estate are performed timely.The attorney, after prior notice to the fiduciary, shallhave an obligation to bring to the attention of thecourt the nonfeasance of the fiduciary.

(d) Sanctions. The court shall have the powerand authority to impose sanctions upon any attorneywho fails to properly carry out the attorney's duties tothe fiduciary, the beneficiaries or ward, and thecourt.

COMMENTARY:There is a great deal of uncertainty in

the law as to the respective duties that anattorney owes to the fiduciary, thebeneficiaries, and the court. This ruleattempts to put some certainty in therespective relationships based on courtrulings, ethical rules, and opinions anddecisions of disciplinary counsel.

Where a fiduciary retains the services ofan attorney to assist in the administration ofthe fiduciary estate or to represent the

fiduciary in its capacity as fiduciary, anattorney-client relationship exists betweenthe fiduciary and the attorney, and no suchrelationship exists between the attorney andthe beneficiaries or ward of the estate. SeeGoldberg v. Frye, 266 Cal. Rptr. 483, 489(Cal. App. 1990). ("Particularly in the caseof services rendered for the fiduciary of adecedent's estate, we would apprehend greatdanger in finding stray duties in favor ofbeneficiaries."); see also Estate of Gory,570 So. 2d 1381, 1383 (Fla. App. 4 Dist.1990); Estate of Larson, 694 P.2d 1051,1054 (Wash. 1985). Contra, see New YorkCity Opinion 496 (1978). However, as boththe Gory and Larson courts discuss, afiduciary is not a normal client, but one whoowes a fiduciary obligation to others. Thisfiduciary obligation, therefore, extends tothe employees and agents of the fiduciary,including the attorney. Therefore, eventhough the attorney has no attorney-clientrelationship with the beneficiaries or ward,the attorney owes a fiduciary duty to notifythe beneficiaries and the court of theimproper action or inaction of the fiduciary.See Mallen & Smith, Legal Malpractice, §§26.4ff; New York City Opinion 269 (1933);ABA/BNA Lawyers' Manual on ProfessionalConduct 01:135 (1987). At least one courthas stated that the attorney's duty of loyaltyextends to the estate, and not to theindividual holding the office of fiduciary:therefore, no conflict of interest existedwhere the attorney took action against thefiduciary for the benefit of the estate. In reGriffin, 589 N.Y.S.2d 933, 934 (A.D. 2 Dept.1992).

This rule establishes clearly that theattorney-client relationship exists betweenthe attorney and the fiduciary insofar as thefiduciary is acting in a fiduciaryrelationship, and it is therefore anamplification of the definition of thelawyer-client privilege under Rule 503 of theHawai#i Rules of Evidence. An attorney whorepresents an individual who happens to bea fiduciary in an unrelated matter is notaffected by this rule. The fiduciary must be



conscious of the difference between personalactions and fiduciary actions. For example,an attorney could not represent a fiduciarywith respect to the administration of a trustand also represent that same individual withrespect to the private business dealings ofthat individual, if the individual attempts toenter into a business arrangement with himor her as fiduciary because such dualrepresentation would present a conflict ofinterest.

Because the fiduciary acts in a qualifiedmanner (as a representative and for thebenefit of others), the fiduciary relationshipextends to the employees and agents of thefiduciary. Section (a) of the rule clarifiesthat the fiduciary relationship is paramountto the attorney-client relationship. Section(b) clarifies that there is no attorney-clientrelationship with the beneficiaries or wardof the estate, but because of the pervasivefiduciary relationship, the attorney has aduty to the beneficiaries to notify them of themalfeasance of the fiduciary. The committeelimited the notification requirement toillegal activities known by the attorney to beillegal that threaten the security of the assetsor the interests of the beneficiaries. If theattorney does not in fact know the acts to beillegal, he cannot be faulted for failing toinform the beneficiaries. This disclosure ofwhat might otherwise be consideredconfidential information is permitted by Rule1.6 of the Hawai#i Rules of ProfessionalConduct. Section (c) defines the attorney'srelationship to the court, and recognizes theneed to efficiently and effectively administerestates. Therefore, the attorney has anobligation to monitor the administration ofthe estate and to ensure that requiredactions take place on a timely basis. Theattorney has an affirmative obligation toinform the court of the nonfeasance of thefiduciary. Section (d) allows the court tosanction the attorney for failing in his or herduties.

To summarize, the committee, afterresearch and extensive discussion,concluded that the attorney and the fiduciary

enjoy a qualified attorney-clientrelationship. It is qualified to the extent thatthe attorney also has a duty to thebeneficiaries to inform them of any seriousand clear malfeasance of the fiduciary,which the attorney knows to be illegal, sothat they may take actions to protectthemselves and their interests in the estate,and a duty to the court to monitor theprogress of the estate and inform the courtof the nonfeasance of the fiduciary, so thatthe court can call the fiduciary to accountand enhance the efficiency and effectivenessof the judicial system.

Because of these qualifications to thenormal attorney-client relationship, theattorney, when placed in the uncomfortableposition of having to report the fiduciaryclient pursuant to sections (b) or (c), mayfeel obligated to withdraw fromrepresentation of the fiduciary. This isprovided for in Rule 44.

The committee discussed the issue ofwhether there exist differences between theroles of the personal representative, theguardian, and the trustee, and thereforewhether different standards should exist foreach role. The conclusion of the committeewas that the role of each type of fiduciarywas so similar that the standards applied toeach should be consistent.



Rule 43. COMMUNICATIONS WITH THECOURT; ADVICE.

Communication with the court staff shall belimited to essential matters that cannot be resolved inother ways. Under no circumstances shall court staffrender any procedural or legal advice to attorneys,attorneys' staffs, or individuals.

COMMENTARY:This rule conforms with current court

policy. The First Circuit Court's Memo ofDecember 22, 1983 provides that "the lawclerks and all other staff will decline toprovide attorneys with advice on the properdocuments to file, the proper form ofdocuments, and the appropriate contents ofdocuments filed. They will also decline toexplain written court orders and rulings."

Rule 44. WITHDRAWAL OF COUNSEL.Effective upon approval by the court, an attorney

may withdraw as counsel in matters pending beforethe court by filing a Withdrawal of Counsel andSubstitution of Counsel, if any, signed by the client,evidencing the client's agreement to the withdrawal.If the client's consent cannot be obtained or if theattorney finds it necessary to withdraw because of aconflict of interest under Rule 42(b) or (c), anattorney may withdraw as counsel only upon filing apetition to withdraw, giving notice to the client, andreceiving the approval of the court. Withdrawals aresubject to the guidelines of Rule 1.16 of the Hawai#iRules of Professional Conduct and other applicablelaw. The court shall determine the division of feesbetween the attorney who has withdrawn and thenew attorney if mutual agreement cannot be reached.

COMMENTARY:This rule adopts RCC 10.1 regarding

withdrawal of counsel where the consent ofthe client cannot be obtained. Because of thequalified attorney-client relationshipexplained under Rule 42, it is possible that aconflict between the attorney's variousduties exists to the extent that the attorneycannot continue to effectively represent thefiduciary. In such a situation, the attorneymay petition the court for permission towithdraw, which the court will normally

grant only where the attorney clearlyestablishes to the court (perhaps inchambers under sealed record) that effectiverepresentation is no longer possible.

There may also be circumstances wherean attorney represents a client in an initialformal proceeding but the estate is thenadministered informally with the personalrepresentative acting pro se. In such asituation, counsel could simply file awithdrawal of counsel signed by the clientstating that the personal representativewould thereafter act on his or her ownbehalf. Nothing in this rule is intended tosupersede the law that provides that acorporate fiduciary cannot act pro se beforethe court.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 45. EXPEDITION OF COURTBUSINESS.

(a) Required Notice. The attorney for thepetitioner shall advise the court promptly when acontested matter is settled or the need for a hearingno longer exists. An attorney who fails to give thecourt such prompt advice may be subject to suchsanctions as the court deems appropriate.

(b) Effect of Failure to Appear. The court maysanction any attorney who, without just cause, failsto appear at a hearing for which the attorney's clientis the petitioner or an objecting party, or any attorneywho unjustifiably fails to prepare for a presentationto the court necessitating a continuance.



Rule 46. BOND.(a) Procedures for Posting. When the court

orders that a bond be filed in connection with theissuance of letters to a fiduciary, the petitioner shallpresent the order appointing the fiduciary to the courtfor signature, without the let ters evidencingappointment. The clerk shall then accept the orderfor filing without presentation of the letters. Thefiduciary may then present a certified copy of theorder by which the fiduciary was appointed to theinsurer for issuance of the bond. The completed bondand letters may thereafter be presented to the courtfor filing and issuance of the letters.

COMMENTARY:Posting of bond is rare in probate.

However, in those rare cases where bond isrequired or the fiduciary wants to obtain it,the insurer will issue bond only upon receiptof a certified copy of the order appointingthe fiduciary. The court clerks have balkedat filing the order without issuing the lettersat the same time. This rule clarifies the stepsnecessary to post bond and have lettersissued.

(b) Payment of Costs. The fiduciary obtaininga bond may charge the costs as a proper cost ofadministration of the estate.

COMMENTARY:This rule reflects statute and common

practice and should eliminate uncertainty.

(c) Proceeding Against Surety. Each surety ona bond presented to the court submits itself to thejurisdiction of the court and irrevocably appoints theclerk of the court as the surety's agent upon whomany papers affecting the surety's liability on the bondmay be served. The surety's liability may be enforcedon petition without the necessity of an independentaction. The petition and such notice of the petition asthe court prescribes may be served on the clerk of thecourt, who shall forthwith mail copies to the suretyif the surety's address is known.

COMMENTARY:This rule conforms to the Rules of Civil

Procedure to provide a consistent treatment

of sureties.

Rule 47. RESERVED.

Rule 48. DELEGATION OF POWERS TOC L E R K A N D D E P U T YCLERKS.

(a) Permissible Delegation. In addition toduties and powers exercised as registrar in informalproceedings, the court by written order may delegateto the clerk or deputy clerks any one or more of thefollowing duties, powers, and authorities to beexercised under the supervision of the court:

(1) to set a date for hearing on any matter and tovacate any such setting;

(2) to issue subpoenas;(3) to certify copies of documents filed in the

court;(4) to correct any clerical error in documents

filed in the court;(5) to transfer a will to another jurisdiction

pursuant to Rule 74;(6) to enter estate closing orders in supervised

and formal proceedings, if there is no objection toentry of such order by any interested person.

(b) Entry of Orders. The clerk shall enter andfile all orders made and proceedings had by the clerkor deputy clerks in the permanent record of the caseto which the order or proceeding pertains.

(c) Vacation and Effect of Orders. Anyinterested person affected by an order entered or anaction taken under the authority of this rule may havethe matter heard by the court by fil ing a petition forhearing within ten days after entry of the order ortaking of the action. Upon filing of a petition, theorder or action in question shall be vacated and thepetition placed on the calendar of the court for thenext available hearing date, and the matter shall thenbe heard by the judge. The court may, within thesame ten-day period, vacate the order or action on thecourt's own motion. If a petition for hearing by thecourt is not filed within the ten-day period, or theorder or action is not vacated by the court on its ownmotion within such period, the order or action of theclerk or deputy clerks shall be final as of its datesubject to normal rights of appeal. The acts, records,and orders of the clerk or deputy clerks not vacatedpursuant to the foregoing provision shall have thesame force, validity, and effect as if made by a judge.



(d) Updating of Letters. A fiduciary at any timemay request upon payment of the appropriate fee thatthe clerk of the court issue updated copies of theletters previously issued to the fiduciary andcurrently in effect, and the clerk shall certify on theface of the updated letters that they are still in fullforce and effect if more than three (3) years from thedate the letters were originally issued has not elapsedor any renewal period has not expired.

COMMENTARY:The definition of "Letters" in HRS §

560:1-201 provides that letters testamentaryand letters of administration are effective foronly three (3) years, unless renewed forgood cause. Rule 48(d) has been revised toreflect this limitation.(Amended November 12, 1997, effective


Rule 49. RESERVED.

PART B. PROBATE PROCEEDINGS

I. COMMENCEMENT

Rule 50. INITIAL PLEADINGS.(a) Case Numbers. The clerk shall assign a P.

No. to each probate case matter directly related to theadministration of a deceased's estate. Each partypresenting a document regarding the sameadministration of the estate of that deceased shall usethe 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 ofDeath) to which the pleading applies; the notationmay change as the status of the proceeding changes.

COMMENTARY:This rule changes the Rules of the

Circuit Courts in defining the types of casefilings allowed. Case filing designationsS.E., W.D., D.N., and the like will beeliminated in favor of using a P. No. for allproceedings relating to a deceased's estate.By assigning a P. No. to a particular

deceased upon the filing of an initialpleading with respect to that deceased andthen requiring all later filings of any naturerelating to that deceased to use the same P.No., the court can be assured of having allpleadings relating to a particular deceasedin one file. In addition, assigning a P. No.upon the filing of a Demand for Notice orWill Deposit will lessen the chance that theDemand or Will is missed, because the courtstaff will not have to cross-index casenumbers or check different classes of caseswhen a probate proceeding is initiated.Finally, using one case number throughoutthe administration of a deceased's estate willeliminate burdensome procedures andconfusion when the proceeding changesform, such as when a small estate isconverted into an informal probate, or aninformal into a supervised.

The second part of the rule, requiring anotation of the type of proceeding at thepoint the document is filed, conforms to civilcourt practice and assists the court staff andparties to readily identify the status andnature of the estate. The wording of the casecaption may also change as the character ofthe proceeding changes, for example from"In the Disappearance of John Doe, bornJanuary 1, 1920" to "Estate of John Doe,Deceased."



(b) Identification of Beneficiaries and Heirs.The party preparing any petition shall list the namesand addresses, to the extent known, of all heirs at lawof the deceased and of all beneficiaries entitled totake under a will presented for probate and itscodicils. If the heirs at law are other than the spouseor reciprocal beneficiary, descendants, or parents ofthe deceased, the petitioner shall affirmatively statethat the deceased left no such survivors. Thepetitioner shall attach to the petition a copy of thedeath certificate for the beneficiary named in thewill, who died before the deceased, or any otherevidence, by affidavit or otherwise, to establish thatthe beneficiary is dead. If a beneficiary of an estatedies after the deceased but prior to thecommencement of the proceeding, the petition shallidentify such beneficiary's estate, or the successorbeneficiary, as the case may be, as the appropriateparty and shall notify such beneficiary's personalrepresentative, if any. Alleged illegitimate childrenof a male deceased of whom the petitioner orapplicant is aware shall also be identified and givennotice of the commencement of the proceeding.

COMMENTARY:This rule is intended to clarify the status

of beneficiaries and heirs on the face of thepetition and to establish why a particularperson is not being considered a beneficiaryof the estate. Contingent beneficiaries whowill not take because the contingency givingrise to their right to take did not occur neednot be given notice. (For example, where awill leaves the residuary estate to Joe, but ifJoe does not survive the testator, to Bill, andJoe survives the testator, then Bill need notbe given notice as his rights never vest. Butif the contingency has not been settled at thetime of the filing of the petition, then thecontingent beneficiary must be given notice.)

The committee considered the rights ofbeneficiaries named in a prior will but foundno statutory or common law right to noticeto such possible parties solely to enablethem to bring a will contest. HRS §560:3-403(a) specifically limits the class ofindividuals entitled to notice of thecommencement of a probate proceeding.Extending a notice right to persons named in

a prior will raises many questions ofwhether an alleged prior will is theimmediately prior will, and all the proof andcapacity questions raised with the willpresented for probate.

If a vested beneficiary dies prior to thefiling of the petition or application, then theestate of the beneficiary shall be named asthe beneficiary and given notice. If a probateestate has not been started for the deceasedbeneficiary, the petitioner is under noobligation to commence probateproceedings on behalf of the deceasedbeneficiary, but the petitioner shouldundertake reasonable efforts to notify knownrelatives of the deceased beneficiary of thevested interest.

The last sentence of the rule requiresnotice to those persons known to thepetitioner or applicant to be allegedillegitimate children of a male deceased, sothat those persons will have an earlyopportunity to take action to prove theirrelationship. In most cases, the actualdetermination of paternity will have to bemade by the family court, but identifying thepotential children should lead to moreexpedient and final settlement of the estate.

(c) Informal Probate Information Sheet. Anyinformal application that seeks probate of a will,determination of intestacy, or appointment of apersonal representative shall be accompanied by acompleted informal probate information sheet, inform acceptable to the registrar.

COMMENTARY:To help the registrar determine whether

advance notice will be required in informalapplications, an informal probateinformation sheet that summarizes thenature of the proceeding must be filed.(Amended November 12, 1997, effective

December 15, 1997.)



II. NOTICE

Rule 51. INITIAL REQUIREMENTS.A party required to serve notice upon an

interested person of the filing of a petition shall servea copy of the pleading, the order setting time andplace of hearing (if any), and will and codicils (ifany), and any other documents relating to thepleading. Published notice to other interested partiesshall be combined with the notice to creditors of theestate (if any), unless notice to creditors waspreviously published with respect to the samedeceased. If a hearing is required, prior to the timeset for hearing, the party shall file (a) a proof ofservice, with return receipts showing all persons whoreceived service, and a statement setting forth theattempts to notify any persons who did not receivenotice, along with (b) any general notice published inaccordance with statute.

COMMENTARY:This rule clarifies what documents are

to be served on an interested person at thecommencement of a probate proceeding. Inaddition, it mandates combined circuit courtnotice and notice to creditors (as has longbeen the practice), unless the notice tocreditors has been previously filed, in whichcase the circuit court notice (if required)may be published separately. Publishednotice to interested persons is not requiredin informal proceedings (HRS § 560:3-301)but is required in formal and some smallestate proceedings (HRS §§ 560:3-403(a),560:3-1206(a)). The rule further providesthat, where efforts to contact a particularperson have been unsuccessful orunresponsive, the published notice will bedeemed to have been sufficient service, sothat the granting of any petition orapplication not be delayed. Rule 8 allowsinterested parties to appear later in theproceeding if they can establish that theattempted service was unreasonable.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 52. RESERVED.

Rule 53. EFFECT OF WAIVERS ANDJOINDERS.

Unless otherwise ordered by the court, a personfiling a petition, memorandum, or other documentshall not be required to serve the document upon anyperson who signed a waiver of notice or who joinedin the petition; except that a person filing (a) aninventory (and any amendment or supplement) (b) apetition for approval of final accounts or (e) apetition to reopen an estate, shall serve a copy oneach interested person, regardless of whether thatperson signed a waiver of notice. A person who hasfiled a waiver of notice may by ex parte petitionrequest the court to set aside the waiver and requirenotice to the person thereafter.

COMMENTARY:This rule clarifies the effect of the filing

of a waiver of notice or joinder. If a waiverof notice is filed, the waiver shall apply toall regular filings except as may bespecifically provided in the waiver. (Forexample, a beneficiary may waive notice ofall proceedings except those relating todisposition of real property.) In all cases,interested persons must receive a copy of thefinal accounting, must receive notice ofproceedings relating to real property thatthe beneficiaries would otherwise receive,and must receive a copy of the inventory(and any amendments or supplements).

In addition, the court always has thepower to override a waiver of notice andorder notice to a beneficiary despite thewaiver. This might be the case where thereis a problem fiduciary and the court wants tomake sure that all interested persons areaware of the actions of the fiduciary. Anindividual who has filed a waiver could alsoby ex parte petition request that the court setaside the waiver.(Amended November 12, 1997, effective

December 15, 1997; further amended June 25, 2003,effective July 1, 2003.)



Rule 54. AT FINAL ACCOUNTING.If formal approval of final accounts is sought, the

personal representative shall serve a copy of thepetition for approval of final accounts and theaccounting on all beneficiaries whose interests havenot been satisfied and on all creditors who filedclaims which are neither barred nor satisfied, in themanner provided by Rule 7. Otherwise, the personalrepresentative shall serve a copy of the final accountsto all distributees of the estate whose interests areaffected thereby and a copy of the closing statementto all distributees, as well as to any creditors whoseclaims have neither been barred nor satisfied.

COMMENTARY:This rule clarifies who the interested

parties are to an estate at the time of finalaccounts and points out that unsatisfiedcreditors must also been given notice. Thisrule, combined with Rule 64, eliminates theneed for publication of notice at finalaccounting. Notice must be served and proofmade as provided in Rules 7 and 8.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 55. RESERVED.

III. SPECIAL ADMINISTRATION

Rule 56. WHEN APPROPRIATE.An interested person may seek appointment of a

special administrator where necessary to preserve theestate or to secure its proper administration,including but not limited to situations where:

(a) the existence of assets to be probated isuncertain, and an administrator is required to locateor identify assets, including investigating the meritsof pursuing a lawsuit or claim for relief; or

(b) no probate assets exist, but an administratoris necessary either to complete an action of thedeceased or to act on behalf of the deceased or thedeceased's estate (other than receipt of no-faultinsurance benefits), including but not limited toreleasing legal or equitable interests of the deceasedand executing documents in pending or threatenedlitigation where the deceased is a defendant; or

(c) for some reason, a probate cannot be opened

rapidly enough to allow the commencement of alawsuit before the running of the statute oflimitations or the filing of a response or objection incases where the deceased or the estate is a defendant;provided, however, that the special administrator'sauthority under this paragraph (c) shall be limited toa period of no longer than six (6) months, and apersonal representative must be appointed prior toobtaining court approval of any settlement; or

(d) an emergency or other situation exists suchthat the estate will be prejudiced unless a specialadministrator is appointed pending appointment of apersonal representative; or

(e) objections have been filed to the probate ofa will or to the appointment of a personalrepresentative, and it is advisable to appoint a specialadministrator to administer the estate with thepowers of a personal representative, but not with thepower of distribution, pending resolution of theobjections; or

(f) a conflict of interest arises or a situationdevelops where the personal representative cannot orshould not act temporarily, and a specialadministrator is appointed for the specific purpose ofeither resolving the conflict issue or temporarilyacting until the personal representative can resumefull powers.

All petitions seeking the appointment of a specialadministrator shall set forth the grounds for seekingthe appointment.

COMMENTARY:Many practitioners are uncertain of the

proper use of a special administration, andsome have, once a special administration isestablished, attempted to run a completeprobate without having a personalrepresentative appointed. This rule providesguidance as to the appropriate situations inwhich a special administrator should beappointed.

Paragraphs (a)-(d) of this Rule 56describe the most common situations givingrise to the appointment of a specialadministrator. Paragraph (a) allows theappointment of a special administrator totrack down assets, since many timesfinancial institutions are reluctant to releaseinformation about a deceased's assets except



to a court-appointed official. Paragraph (b)covers the situation where a lawsuit wasthreatened or pending against the defendant,but in settlement no assets will be paid to theprobate estate, and therefore the specialadministrator is only required for purposesof signing documents (after court approval)and binding the deceased's estate; it doesnot allow a Special Administrator to collectno-fault benefits where no probate assetsexists. Paragraph (b) also covers thesituation of a deceased whose signature isrequired to sign a mortgage release or deedin satisfaction of agreement of sale orsimilar equitable document. Paragraph (c)covers the situation where a civil action isfiled by or on behalf of the estate or theheirs or a suit is filed against the deceasedor his or her estate. In most instances,informal probate can be opened rapidlyenough that special administration shouldbe unnecessary. If, however, the nominatedpersonal representative is not a close familymember, informal probate may take too longif the statute of limitations on the claim isabout to expire or a response or objectionmust be filed. In those situations,appointment of a special administrator isappropriate, but a probate should be openedas soon as possible, and so the time allowedfor special administration and the power ofthe special administrator are limited.Paragraph (d) covers the situation wherethere are probate assets and a personalrepresentative's appointment is to be sought,but the estate will be prejudiced if no one isauthorized to act on behalf of the estate inthe meantime. Examples of this situationwould be to track down a will, identify heirsor beneficiaries, sign tax returns on behalfof the deceased or estate, and many others.

Paragraphs (e) and (f) address the needfor a special administrator when the regularprobate proceeding has been commenced.Under paragraph (e), a specialadministrator may be appointed where a willcontest or objections to the appointment of aspec i f ic indiv idual as personalrepresentative have been filed; rather than

hold up administration of the estate pendingresolution of the contested matter, a specialadministrator can be appointed with allpowers of a personal representative exceptfor the power of distribution.

Paragraph (f) clarifies that a specialadministrator may be appointed even thougha personal representative has beenappointed and is acting where, for a limitedperiod or with respect to a specific issue, thepersonal representative cannot or should notact. For example, if the personalrepresentative has filed a creditor's claimagainst the estate, a special administratormay be appointed for the sole purpose ofevaluating, allowing or disallowing, anddefending the claim, while the personalrepresentative can continue to serve onother issues. Another circumstance whereparagraph (f) might apply is where thepersonal representative is physicallyincapacitated temporarily (such as byhospitalization), but will be able to resumehis or her duties in the future.(Amended June 25, 2003, effective July 1, 2003.)

Rule 57. TERMINATION.A special administration terminates upon order

of the court.

COMMENTARY:It is often unclear when a special

administrator's appointment ends. Where thespecial administration is a prelude to theappointment of a personal representative,the appointment of the personalrepresentative automatically terminates thespecial administrator's appointment, but theorder appointing the personal representativeshould specifically terminate the specialadministration.



Rule 58. ACCOUNTING.Unless otherwise ordered by the court, a special

administrator who is thereafter appointed personalrepresentative shall not file a separate accounting,but shall include the accounting for the period ofspecial administration with the accounting of thepersonal representative. A special administrator whois not appointed personal representative shall accountto the court in the format and manner required of apersonal representative.

COMMENTARY:If a special administrator is later

appointed personal representative, normallythe fiduciary submits only one all-inclusiveaccounting, and this rule follows thispractice. But where the specialadministrator is not the same as thepersonal representative (such as where theinterim special administrator is notappointed personal representative or wherea special administrator is appointed tohandle a particular matter while theappointment of a general personalrepresentative is still in effect), the ruleclarifies that the special administrator mustaccount to the court for his or her actions.Where the nature of the specialadministrator's duties did not involvehandling assets, such accounting can oftentake the form of an affidavit setting forth theactions taken in compliance with the orderof the court.

Rule 59. COMPENSATION.Unless otherwise agreed between the special

administrator and heirs or beneficiaries of an estate,the court shall set the compensation of a specialadministrator. The fees and costs of any petition toapprove the special administrator's fees shall beborne by the estate unless otherwise ordered by thecourt.

COMMENTARY:Where the special administration is

instituted just to get a head start on theprobate proceedings and the fiduciaries arethe same, often there is no need foradditional or separate compensation for the

special administrator. Where a will contestor other contested matter causes a specialadministrator to be appointed to administerthe estate, and a personal representative islater appointed, the statutory fees shouldnormally be allocated between the specialadminis trator and the personalrepresentative based on the relative workdone for the estate. In other situations, thecourt may allow the personal representativeto take the full statutory fee and allow thespecial administrator additional fees.(Amended November 12, 1997, effective

December 15, 1997.)

IV. INVENTORIES

Rule 60. FORMAT AND CONTENT.The personal representative (or special

administrator) may file an inventory with the court.Any inventory filed in court shall show on the firstpage the date of death, and the signature of thepersonal representative. The inventory shall show theaggregate gross value of the probate assets that havethen been valued, the nature and value of each assetwith a description of any loans secured by the assets,and if there is an appraisal, the name of the appraiserand the date of the appraisal. The personalrepresentative shall make available for inspection byany interested person any appraisals or otherdocuments indicating the valuation of any listedassets.

COMMENTARY:The new probate code does not require

that an inventory be filed with the court; it isoptional. If the inventory is filed with thecourt, the cover sheet must show the date ofdeath and personal representative'ssignature. This rule describes the other typeof information that should also be includedin the inventory.(Amended November 12, 1997, effective

December 15, 1997.)



Rule 61. AMENDMENT.The personal representative shall prepare an

amended or supplemental inventory if necessary, asset forth in HRS § 560:3-708. If the originalinventory was filed with the court, then anyamendment or supplement thereto shall also be filedwith the court and served upon all interested persons.An amended inventory shall completely restate theoriginal inventory and shall clearly set forth thenature of the changes by bracketing deleted matterand underscoring added matter. The personalrepresentative may supplement an inventory wherethe changes are minor in relation to the originalinventory and shall only set forth the changes to bemade. The personal representative shall prepare thefirst sheet of the amended or supplemental inventoryin the same manner as the first sheet specified inRule 60. If the original inventory was not filed withthe court, then the personal representative need notfile any amended or supplemental inventory with thecourt, but shall serve such amended or supplementalinventory upon all interested persons.

COMMENTARY:Often, personal representatives file

amended or supplemental inventories, and itis unclear from the amendment orsupplement just what is being changed andwhat effect the change has on thepreviously-filed inventory. This rule draws adistinction between amended inventories,which are completely restated, andsupplemental inventories, which have only afew changes. By requiring compliance withRule 60, the snapshot information on thefirst page is retained.

Rule 62. RESERVED.

COMMENTARY:Rule 62 has been deleted because

inventories are no longer required to beapproved by the court.(Amended November 12, 1997, effective

December 15, 1997.)

V. CREDITORS' CLAIMS

Rule 63. PRESENTING CLAIMS.A creditor seeking payment from the deceased

shall present a claim by (a) delivering the claim, withan affidavit in support thereof, to the personalrepresentative, or (b) filing the claim and affidavitwith the court and timely serving a copy of the claimto the personal representative.

COMMENTARY:This rule explains the two methods by

which a claim may be presented to thepersonal representative under HRS §560:3-804(1). Although presenting the claimto the personal representative directly ispreferred, there may be times when filingwith the court is necessary. If a claim ispresented directly to the personalrepresentative, the claimant may file a proofof service to establish a record of when theclaim was presented. Claims are by andlarge administrative matters, and the courtsprefer to have as little paperwork in theprobate files as possible. Therefore, anattempt is made in this rule to keep anycourt-filed documents with respect topresenting a claim as minimal as possible bynot requiring that all supportingdocumentation be attached, but only that theclaim be supported by affidavit. This ruledoes not prohibit the pursuit of claims byany other legal method.



Rule 64. C L O S I N G E S T A T E S ;ARRANGEMENTS.

Where an estate is ready to be closed butoutstanding claims re main, the personalrepresentative shall include in the petition forapproval of final accounts or Closing Statement (ifany) a description of the arrangements made with thecreditor for securing or satisfying the claim. Thesearrangements may include assumption in writing ofthe obligation by beneficiaries, posting of a bond orother security in an amount equal to the obligationowed plus twenty percent to cover costs ofenforcement and collection where the claim iscontingent or unmatured, or other arrangementsapproved by the court or the creditor.

COMMENTARY:HRS § 560:3-810(b) provides the

methods by which an estate may be closed,even though there are unsatisfied creditors'claims pending. This rule is intended toencourage the personal representative towork out arrangements with the claimantand present them to the court at the finalaccounting for approval.(Amended November 12, 1997, effective

December 15, 1997.)


Rule 65. P R E - E X I S T I N G S A L E SCONTRACTS; CHANGES.

The personal representative may perform thedeceased's contracts to sell or convey real propertywithout an order of the court. However, when theterms of a contract are changed after the deceased'sdeath, and the changes have a significant effect onwhat the deceased's estate will receive, the personalrepresentative must first seek court approval.

COMMENTARY:HRS § 535-1 permits the specific

performance of a deceased's real estatecontracts. This rule is intended to save timeand money by allowing the personalrepresentative to complete any real propertytransfer without the need for litigation orcourt approval. However, a substantial

negative alteration of the terms of thecontract would be considered a newpost-death sale, subject to courtconfirmation procedures.

Rule 66. AUTHORIZATION TO OFFERREAL PROPERTY FOR SALE.

A personal representative shall petition the courtfor authorization to offer for sale real propertybelonging to the estate if such a petition is requiredby the deceased's will or is demanded by a devisee ina testate probate proceeding or by an heir in anintestate probate proceeding. If all the beneficiaries,devisees or heirs who would otherwise be entitled totake the property absent a sale join in a petition forauthorization to sell, then such authorization may begranted on an ex parte basis. If all such beneficiariesdo not join in the petition, the court shall set thepetition for hearing with notice to all beneficiarieswho would otherwise be entitled to take the propertyabsent a sale.

COMMENTARY:HRS § 531-28.5 no longer requires a

personal representative to obtain authorityto offer real property for sale if thedecedent's will is silent as to such authority.But the personal representative must petitionthe court for such authority if required bythe will or demanded by a devisee in atestate probate proceeding or by an heir inan intestate probate proceeding. This ruleclarifies that such authority can be grantedon an ex parte basis if all interested personsjoin in the petition for authorization. Thisrule does not eliminate the need for aconfirmation of any sale if required underHRS § 531-29.(Amended November 12, 1997, effective

December 15, 1997; further amended June 25, 2003,effective July 1, 2003.)



Rule 67. CONSENT TO SALE.If the will does not require that court approval of

real estate sales be obtained, the personalrepresentative may notify the beneficiaries of thepersonal representative's intention to list realproperty for sale and request the beneficiaries toconsent to any sale of the property, so long as aspecific price is obtained. If all the beneficiariesconsent in writing, the personal representative maylist and sell the real property for the approved price,without complying with the provisions of Rule 68through 72. If the consent of all the beneficiariescannot be obtained, then the Deposit Receipt Offerand Acceptance (DROA) shall contain the terms setforth in Rule 68, except that the statement required in(d) thereof shall provide that the sale andcommissions may be subject to court approval. Oncethe personal representative has received an offerwhich the personal representative wishes to accept,the personal representative may again ask thebeneficiaries to consent to the specific sale terms setforth in the DROA. If the beneficiaries consent inwriting, then the sale may proceed withoutcomplying with Rules 69 through 72.

COMMENTARY:The purpose of this rule is to allow the

personal representative to obtain thebeneficiaries' consent to a specific salesprice before listing the property for sale sothat there is no need to include courtconfirmation as a possible condition to thesale. The possibility of court confirmationand overbid procedures may have anadverse impact on the personalrepresentative's ability to sell the propertyand, thus, lower the sales price. If priorapproval by all the beneficiaries is obtainedbeforehand, court confirmation can beavoided and the property listed for salewithout any reference to court confirmation.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 68. SALES CONTRACTS.The personal representative may sign contracts

for sale of real property, including in each contract:(a) the description of the property interest being sold;(b) the name and address of the buyer, (c) a statement

whether an escrow agent will be used in the closing,(d) a statement that the sale and the commissions andfees payable to brokers may be subject to courtconfirmation and overbid procedures if required bythe will or any devisee in a testate proceeding or anheir in an intestate proceeding, (e) a statement thatthe property will be conveyed "as is" by quitclaim orlimited warranty deed, (f) a minimum deposit of thelesser of $5,000 or the full purchase price for theproperty, and (g) the signature of the personalrepresentative. The personal representative shallretain the minimum deposit or place it with theescrow.

COMMENTARY:This rule has been revised to reflect the

amendment to HRS § 531-29, which nowrequires court confirmation of a sale only ifrequired by the will of an heir or deviseewith an interest in the property.(Added November 12, 1997, effective December

15, 1997.)

Rule 69. NOTICE.If court confirmation of the sale is sought, the

following procedures shal l apply:(a) Method. The petitioner shall prepare a

notice of the petition for confirmation of sale andshall serve the notice on the prospective buyer andall persons interested in the property or the proceedsthereof. The petitioner shall post a copy of the noticeat the courthouse. The petitioner shall set forth on thefirst page of the notice the offering price, therequired minimum bid price, and the tax map keynumber(s) for the property being sold.

(b) Newspaper Publication. The personalrepresentative may publish the notice in a newspaperin the circuit where the property is located. Thecourt, upon petition of an interested person or uponits own motion, filed within 10 days of the filing ofthe petition for confirmation of sale, may orderpublication in the newspaper.

(c) Failure of Notice. When the personalrepresentative does not cause the notice to be postedor served within the time required by statute, thecourt may continue the hearing on the petition forconfirmation of sale to the next available hearingdate. The court will accept written offers (overbids)until the time of the rescheduled hearing. The



personal representative shall prepare the amendednotice of hearing for the rescheduled hearing dateand serve it on the same persons who were servedwith the notice of the original petition.

COMMENTARY:This rule clarifies the provisions of HRS

§ 531-29, relating to confirmations of sale ofreal property, by normally waiving the needfor published notice and requiring notice tothe proposed buyer and the beneficiaries ofthe estate who would otherwise be entitled tothe real property. The posted notice isrequired to have certain information on itsfirst page, because often the notices run overone page, and are posted behind glass,making it difficult for potential bidders togain access to the complete informationrequired. Because notice must be posted atleast 15 days prior to the hearing, the ruleprovides for continuances, and in theinterest of getting the best price for theestate, allows further bids up to the time ofthe continued hearing.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 70. BIDS AND OVERBIDS.(a) When Due; Deposits. A person desiring to

bid on a property at a confirmation of sale hearingmust deliver the bid to the court clerk prior to thetime set for the hearing on the petition, accompaniedby the required deposit. The court may determinethat bids that are not received in time, or that are notaccompanied by the required deposit, will not beconsidered.

COMMENTARY:For the clarity and consistency of

procedure, bids on a sale of real propertyare required to be delivered to the clerkprior to the time set for the hearing. Theclerk will time-stamp the envelopecontaining the bid and deposit and thenimmediately deliver it to the court. However,the court can make exceptions to thisgeneral rule where the estate will benefitthereby.

(b) Overbids. If an initial bid has been offeredand accepted, a further overbid from any person shallbe permitted at least five percent greater than theinitial acceptable bid. If such an overbid acceptableto the personal representative is made, the court shallsolicit additional bids in such manner and amount asit shall determine. When more than one initial bid isoffered prior to the hearing, the highest bidacceptable to the personal representative shall set thebase for any additional overbids at the hearing, andwhere more than one initial bid is for the sameamount, the bid received by the court first shall setthe base for any additional overbids at the hearing.Overbids, when made, shall clearly state anyconditions, contingencies, or financing terms, and thepersonal representative shall have the sole authorityto determine whether an overbid is acceptable.

COMMENTARY:This rule implements a number of

requirements to make for the most efficienthandling of confirmation of saleproceedings. The minimum first overbidamount after the initial bid is set at fivepercent, to save time and ensure meaningfuloverbids. Thereafter, additional bids will beaccepted in such manner and in suchamounts as the court determines. The rulefurther clarifies that it is the decision of thepersonal representative, not the court, as towhether an overbid is acceptable.

The personal representative decideswhether a bid is acceptable. Although a bidmay be higher in amount than a previousbid, the personal representative may accepta lower bid whether the terms of theproposed sale are more favorable to theestate. The personal representative maywant to consider whether the bid is for cashor on terms, the differences in the terms ofdifferent bids anticipating financing, and thecredit worthiness of the bidder.



Rule 71. FAILURE TO COMPLETE SALE.A successful bidder at a confirmation of sale

hearing who fails to complete the purchase of theproperty shall pay, as the court in its discretion mayorder, (a) an amount sufficient to cover all escrowcharges, attorneys' fees, extraordinary fees, andexpenses incurred and paid by the personalrepresentative and approved by the court as part ofthe confirmation of sale and (b) any additionaldamages proximately caused by the failure. After anysuch failure, the personal representative, in his or herdiscretion, may either reoffer the property for sale ormay enter into a contract for sale with the nexthighest bidder who is willing to purchase at his orher last bid price, subject to court confirmation.

COMMENTARY:If a bidder fails to complete a sale, this

rule requires the bidder to pay the expensesincurred in going through the confirmationof sale process. In addition, the court mayassess additional damages to make theestate whole and to discourage fraudulentbidding efforts, such as where a person whocannot satisfy a bid raises the price in aneffort to scare off other bidders and thenseeks to purchase the property at a lowerprice later, or where a speculator seeks tosetup a back-to-back sale and plans to walkaway from the purchase if the other buyerdoes not come through.

Once a sale falls through, the personalrepresentative may then reoffer the propertyfor sale. Backup bids are not accepted in theconfirmation of sale process because somuch time can elapse between the time ofthe confirmation hearing and the eventualclosing of the sale, and market conditionscan change. The attorney should be certainto include the forfeiture provision (subject tofurther order of the court) in the orderconfirming sale.

Rule 72. BROKERS', ATTORNEYS', ANDPERSONAL REPRESENTATIVE'SFEES AND COMMISSIONS.

(a) Personal Representatives and Attorney'sFees. Personal representative's and attorneys' feesmay be considered and approved at the time of the

confirmation of sale, and may be paid directly fromescrow as a cost of sale.

COMMENTARY:This rule clarifies that extraordinary

fees payable to the attorney and the personalrepresentative are to be determined at theconfirmation hearing if the attorney andpersonal representative desire, and may bepaid out of escrow. By using this method,rather than waiting until final accounts, thefees are tied directly to the property sale andcan have favorable income tax effects.Counsel should be certain to specify at thefees are to be paid from escrow at closing inthe court order, so that escrow does not missit.

Paying these fees from escrow as aportion of the sale fairly and timelycompensates the personal representative andattorney and also may have tax advantagesto the estate by clearly tying the fees to thesale as an expense of the sale. The languageof the rule is permissive, however, as theremay be reasons that the personalrepresentative or attorney wants to waituntil final accounts to have the fee approved.



(b) Broker's Commissions. In addition to thefees allowed to the personal representative and theattorney, the court may allow broker's commissionson the sale in an amount agreed to by the parties,unless there is a successful overbid.

Where a successful overbid is made at theconfirmation of sale hearing and the original buyer 'sbroker does not prevail, then the broker's commissionshall be divided as follows:

Broker Commission Allowed

Seller’s One-half of approvedcommission on originaloffered price

OriginalBuyer’s(unsuccessful)

One-third of approvedcommission on original price

SuccessfulBuyer’s

One-sixth of approvedcommission on originaloffered price plus 100% ofapproved commission onoverbid amount

No excise or sales taxes may be added to anycommissions. Commissions shall be paid fromescrow at the close of the sale.

COMMENTARY:This rule has been amended to allow the

parties to negotiate brokers' commissions,except where there is an overbid. Under theprior rule, if only one broker was involved,the court allowed only a 5% commissioneven if the parties had agreed to a 6%commission. (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 anindividual without probate and further administrationmay be brought where at least five years have passed

since the date of the individual's death. Theproceeding is commenced by the filing of a petitionsetting forth (1) the fact of the deceased's death withsupporting evidence; (2) that the deceased left realproperty in the judicial circuit; (3) a description ofthe law determining those persons who were heirs atlaw of the deceased at the time of the deceased'sdeath with citations; (4) that no estate of thedeceased was previously probated in any jurisdiction;(5) the names and, to the extent known, the addressesof the heirs at law of the deceased at the time of thedeceased's death; and (6) to the extent known, thenames and addresses of the currently-living heirs atlaw of the deceased. The petitioner shall serve noticeon all known living heirs at law of the deceased andshall publish notice once a week for threeconsecutive weeks in a newspaper of generalcirculation in the circuit where the property islocated, with the last date of publication no later thanten days prior to the date of the hearing. At thehearing, the court may consider such evidence as ispresented by the parties who appear and enter anorder determining that the deceased is dead and thenames of the deceased's heirs at law at the time of thedeceased's death. A proceeding to determine heirsmay be brought with respect to more than oneindividual in a family line in one proceeding. Theorder determining heirs shall be recorded in theBureau of Conveyances of the State of Hawai#i.

COMMENTARY:Proceedings to determine the heirs of an

individual are frequently required to cleartitle to real property. This rule providesguidance to a petitioner in the elementsrequired to bring such proceeding andrequires notice after diligent inquiry to allinterested persons.



VIII. DEPOSIT OF WILLS

Rule 74. DEPOSIT OF WILL WITHOUTPROBATE.

(a) Method of Deposit. Any individual maydeposit with the court the original will and anycodicils for safekeeping without probate after thedeath of the individual who executed the will. Suchdeposit shall be accomplished by the filing of aDeposit of Original Will signed by the personpresenting the will, and to the extent known to theperson presenting the will, setting forth the name andall known aliases of the deceased, the date and placeof death, and the names and addresses of all knownheirs at law and persons named in the will, includingthe nominated personal representative. The Depositof Original Will shall be accompanied by the originalwill and any known codicils and a certificate of deathor other suggestion of death for the individual.

(b) Assignment of Case Number. The clerkshall file the Deposit of Original Will under a P. No.for the deceased. Any later Deposit of Original Willor probate proceeding subsequently filed on behalf ofthe deceased shall use the same P. No.

(c) Access to Deposited Will. A will, oncedeposited, shall be considered a public document andopen for inspection by the general public. Nocertified copies of deposited wills may be issued.

(d) Maintenance of Original Will; TimeLimits. Unless probated or withdrawn pursuant toRule 75, an original will deposited with the courtshall be maintained for 20 years after the death of theperson who executed the will, after which period thewill may be recorded by the clerk in some fixed formthat will provide an accurate image of the originaland then the original may be destroyed.

COMMENTARY:There is currently no formal mechanism

for filing a will with the court withoutinitiating a full probate proceeding,although HRS § 560:2-516 provides that acustodian of a will, on request of aninterested person, must deliver the will to aperson able to secure its probate or to anappropriate court. This rule establishes aprocedure whereby the custodian of a willcan deposit the will with the court, withoutfurther responsibility, and create a case file

in the court system from which a probateproceeding could be initiated without furtherprocedural obstacles (such as transferring adeposited will to a probate proceeding).Because the custodian of the will is likelynot being compensated for his or her efforts,the rule does impose a notice requirementon the custodian.

The deposit of a will is not a judicialproceeding but an administrative function.No determination as to the validity of a willis made when a will is received for deposit,and the deposit does not serve to bar thegeneral five-year period in which to probatethe will of a deceased. However, thedeposited will is a public record open toinspection by the general public.

Paragraph (d) provides that the will,unless probated or withdrawn, must beretained by the court for a period of 20years from the deceased's death, which isbeyond the longest period provided forprobate of a will under HRS § 560:3-108.After that period, the will may be recordedby some method so as to affix the image forlater retrieval (such as microfilm,microfiche, or CD-ROM), and then the willmay be destroyed.

Rule 75. TRANSFER OF DEPOSITED WILL.A will deposited with the court may be

transferred by the clerk of the court at the expense ofthe petitioner upon petition of the withdrawingperson after notice to all interested persons thatestablishes that the will is to be presented for probatein another jurisdiction, identifying the jurisdictionand court in which it is to be presented for probate,and attaching a certified copy of an order of the courtin the transferee jurisdiction requesting the transfer.If the petition is filed by the personal representativenominated by the will, the court may grant thepetition on an ex parte basis; otherwise, the petitionmay be granted only after notice to all interestedparties and hearing.

COMMENTARY:This rule allows a deposited will to be

transferred for probate in anotherjurisdiction. The will is transferred directly



by the clerk of the court, so that the chancesof fraud are decreased.

IX. ANCILLARY PROCEEDINGS

Rule 76. FILING OF DOMICILIARYDOCUMENTS.

When a proceeding is brought that is ancillary toa probate proceeding in another jurisdiction, thepetitioner, in addition to the pleadings normallyrequired for the proceeding, shall file with the courtprior to the issuance of Letters Testamentary orLetters of Administration a certified copy of thedomiciliary proceeding's (1) petition for probate oradjudication of intestacy; (2) order of probate oradministration; (3) letters testamentary or letters ofadministration; (4) will and any codicils presentedfor probate in the domiciliary jurisdiction; and (5)any documents closing the domiciliary proceeding.Documents from a foreign jurisdiction shall beexemplified or have attached thereto an apostille.

COMMENTARY:It should be noted that, under

§ 560:4-204, a domiciliary foreign personalrepresentative will have all the powers of alocal personal representative simply byfiling certified copies of its appointment andany bond with the court. Neither an informalnor a formal proceeding is necessary.However, if an ancillary proceeding isinitiated, then the documents described inRule 76 must be filed.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 77. ANCILLARY INVENTORY.The inventory filed in an ancillary probate shall

include only assets subject to the jurisdiction of thecourt.

COMMENTARY:Ancillary inventories should cover only

assets under the court's jurisdiction. Theseinclude real property interests, certaintangible personal property, and possiblyfinancial institution accounts located in theState of Hawai#i. With the Supreme Court's

adoption of the doctrine of equitableconversion (Bank of Haw. v. Horwith, 71Haw. 204, 212, 787 P.2d 674 (1990)),ancillary probate in Hawai#i of a vendor'sinterest in an agreement of sale or amortgagee's security interest should nolonger be required, but a specialadministration may be necessary to providean authorized person to sign any deed insatisfaction of the agreement of sale orrelease of mortgage. The vendee's interestwould clearly be subject to ancillary probatein Hawai#i.

Rule 78. RESERVED.

Rule 79. NOTICE IN ANCILLARYPROCEEDINGS.

In addition to the persons normally entitled tonotice of a proceeding, the domiciliary personalrepresentative shall be entitled to notice of allancillary proceedings. Where the only assets underadministration in this jurisdiction are specificallydevised pursuant to a will admitted to probate in thisjurisdiction, the residuary devisees of the estate shallnot be considered interested persons after the will isadmitted to probate.

COMMENTARY:Where an ancillary proceeding

administers only real property that isspecifically devised by a will admitted toprobate by the court, there is no need tonotify other parties named in the will,including the will's residuary beneficiaries,of the local proceedings. Therefore, in suchcircumstances, only the specific devisee andthe domiciliary personal representative areto be considered interested persons after thewill is admitted to probate.



Rule 80. ACKNOWLEDGING DOMICILI-ARY FIDUCIARY OR BENEFI-CIARY AUTHORITY TO SIGNPROPERTY DOCUMENTS.

A domiciliary personal representative (orresiduary beneficiary of the domiciliary estate, if thedomiciliary estate has been closed) may petition thecourt for an order to authorize the petitioner to signa release of mortgage or deed in satisfaction ofagreement of sale or similar document affecting titleto real property, without petitioning for ancillaryadministration. The petitioner shall state in thepetition (a) the petitioner's name, address, telephonenumber, and federal tax identification number; (b)the state, court, and proceeding number and title ofthe domiciliary probate proceeding; (c) the name andaddress of the domiciliary personal representativeand whether such fiduciary's appointment has beenterminated; and (d) a description of the document forwhich a signature by a personal representative of thedeceased is required. The petitioner shall attach tothe petition a certified copy of the order appointingthe domiciliary personal representative and the orderof distribution of the domiciliary estate (if such latterorder has been filed). The court may order thepetitioner to sign the designated documents basedupon the petition and accompanying papers, or uponsuch other evidence as the court requires.

COMMENTARY:This rule addresses the common

problem where a non-Hawai#i residentretains an equitable interest in real propertyin Hawai#i, such as through a mortgage orvendor's interest in an agreement of sale,and someone is needed to sign documents torelease the deceased's interest. The doctrineof equitable conversion, which has beenadopted in Hawai#i, gives that deceased'sinterest the character of personal propertyand, therefore is generally within thejurisdiction of the domiciliary estate, butHawai#i's Land Court statutes and Hawai#ititle insurers frequently require a Hawai#icourt order acknowledging the authority ofthe person who attempts to sign documents.This rule provides a quick and simple way,giving full faith and credit to the domiciliarycourt proceedings, to acknowledge theperson's ability to sign documents affecting

Hawai#i real property. This rule requiresvery little involvement by the court, and theclerk issues the order as an administrativefunction. This rule should eliminate the needfor special administrations previously usedto appoint a person with authority to signsuch documents.

X. FLAG SHEETS

Rule 81. FLAG SHEETS REQUIRED.An original and not less than two copies of flag

sheets in the form ordered by the court shall bepresented to the clerk of the court for all hearings toadmit a will to probate, to adjudicate intestacy, toappoint a personal representative, to confirm the saleof real property, to determine an elective share, andto approve the final accounts of the personalrepresentative. These flag sheets shall conform to therequirements of Rule 4 and shall be presented to thecourt no later than ten days prior to the scheduledhearing. Flag sheets shall not be file-marked as apleading, but shall be date-stamped by the clerk andplaced in the court file for reference. Failure topresent a required flag sheet in time shall cause thehearing to be continued to the next available date.Where the facts of the case as set forth in the flagsheet change after submission of the flag sheet to thecourt, an amended flag sheet shall be presented.

COMMENTARY:This adopts the rule of Probate Memo 1

and makes flag sheets mandatory in allprobate proceedings in all circuits. The flagsheets are not filed as pleadings but aredate-stamped as having been received by theclerk to eliminate the chance for lostdocuments and to provide a clear record.The flag sheet is normally placed in thecourt's file for ready reference by the judgeand court staff. It is anticipated that, with anappropriate top margin for the date stamp,the flag sheets will follow generally theformat of current flag sheet forms 1-A, 1-B,1-D, and 1-E; they will ideally be preparedas pre-printed forms.(Amended November 2, 1995, effective January

2, 1996; further amended November 12, 1997,effective December 15, 1997.)



XI. CONCLUSION OF PROCEEDINGS

Rule 82. RESERVED.

Rule 83. INTERIM ACCOUNTING.The personal representative may file a verified

interim accounting with the court annually, or forlonger periods, in the format and with the proceduresset forth in Rule 26. If the court approves any interimaccountings, the personal representative, upon filingof the final accounting, shall refer to, but not includeprior approved accountings.

COMMENTARY:In particularly complex estates which

may run for years, supplying a singleaccounting at the end of the administrationmay be almost meaningless because it is socomplex or records have been lost in theinterim. This rule allows interim accountingsto be presented and possibly also approved,so that the process can be kept up at ameaningful pace through the estateadministration. The rule allows the filing ofinterim accountings, but they will not beapproved by the court unless a request ismade. If the personal representative asks forapproval, the court can proceed in regularcourse.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 84. SUPPLEMENTAL ACCOUNTING;FINAL RECEIPTS.

After approval of the final accounting, if any, thepersonal representative shall distribute the assets tothe persons entitled thereto, file final receipts, andwhen applicable, file a supplemental accounting forreceipts and disbursements which are not included inthe final receipts for distributions. The filing of thefinal receipts and, if applicable, a supplementalaccounting, shall serve to discharge the personalrepresentative without further court order.

COMMENTARY:This rule has been amended to reflect

that the filing of final accounts andobtaining court approval is now optional.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 85. DISTRIBUTION TO MISSINGPERSONS.

If a beneficiary entitled to a portion of the estatecannot be located at the time of distribution, then thepersonal representative shall deal with suchbeneficiary's share of the estate pursuant to theprovisions of Hawai#i Revised Statutes Section560:3-914. Such distribution shall be reflected in thecourt order approving the distribution of assets andshall be filed by the clerk under the same P. No. asthe original proceeding.

COMMENTARY:Rarely, a beneficiary's address is

unknown or is lost during the administrationof the estate. In such instances, HRS §560:3-914 allows the fiduciary to transferthe assets to the person's conservator, if any,or otherwise to the State. This rule clarifiesthat the transfer shall be made pursuant tocourt order and shall be carried in the samecase number as the probate.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 86. NEWLY DISCOVERED ASSETS.Where a proceeding has been terminated and

thereafter additional assets of the deceased arediscovered that were not administered in theproceeding, the personal representative or otherinterested person may petition the court to reopen theproceeding for the purpose of administering theasset. The petition shall include statements that thecreditors' claims and estate and transfer taxes, if any,have been fully satisfied, or explain to what extentthey were not originally satisfied. Where the assetneeds only to be distributed pursuant to court order,and all taxes and claims have been settled, thepersonal representative or interested person maypetition the court for an amended order ofdistribution of the estate to include the newlydiscovered property. The court shall orderdistribution of the newly discovered property to theappropriate persons and determine whether thepersonal representative or interested persons and theattorney are entitled to additional fees, cost, andexpenses, and the amount thereof.



COMMENTARY:This rule addresses the situation of a

forgotten asset and the need for an orderdistributing the asset (such as a small realproperty interest). This allows theamendment of the order of distribution toinclude the newly-discovered property andcan often be completed on an ex parte basis.However, such a short-cut procedure cannotbe used where the asset forms a large shareof the estate and creditors' claims or taxclaims were not fully satisfied in theproceeding. The court may allow reasonablefees and costs for the petition and transferbased on the effort expended.

XII. MISCELLANEOUS

Rule 87. SUBMISSION TO JURISDICTIONBY NON-RESIDENT PERSONALREPRESENTATIVE.

(a) Manner and Effect of Submission. Wherean individual not a resident of the State of Hawai#iseeks appointment as special administrator orpersonal representative, the petition or applicationfor appointment signed by the non-resident or theacceptance of appointment shall contain a clear andconcise statement to the effect that (a) the individualfully and freely submits to the personal jurisdictionof the courts of the State of Hawai#i and (b) theindividual fully, freely, and irrevocably appoints theclerk of the court in the circuit in which theproceeding is brought as the individual's agent forservice of process for all purposes related to theproceeding in the State of Hawai#i.

(b) Procedure for Substituted Service. Theindividual so appointed shall keep the clerk of thecourt informed in writing of the individual's mailingaddress at all times. A non-resident so appointedshall keep the clerk of the court informed in writingof the non-resident's mailing address and telephonenumber at all times. Before any substituted servicemay be made on the clerk of the court, the partyattempting service must make, and document to thesatisfaction of the clerk of the court that the partyattempting service has made, reasonable attempts atmailed or personal service. Upon service on the clerkof the court, the sole responsibility of the clerk of the

court shall be to mail the pleadings and papers soserved, postage prepaid, to the non-resident at thelast mailing address which the non-resident shallhave given the clerk of the court.

COMMENTARY:The 1990 statutory change to allow

non-residents to serve as personalrepresentative in Hawai#i requires that thenon-resident submit to the jurisdiction ofHawai#i state courts. This rule seeks toimplement that requirement, both through anaffirmative submission to jurisdiction (eitherin the petition or in a separate acceptance ofappointment) and through appointment ofthe chief clerk of the court as theindividual's agent for service of processrelated to the proceeding.(As amended November 2, 1995, effective

January 2, 1996; further amended November 12,1997, effective December 15, 1997.)

Rule 88. DEMAND FOR NOTICE.(a) Preparation and Filing. A Demand for

Notice shall set forth the name of the deceased, anyknown aliases, approximate date and place of death(if known), the nature of the interest of thedemandant in the estate, and the address of thedemandant or the demandant's attorney. The Demandfor Notice shall be assigned a P. No. if noproceedings have been commenced for the deceased'sestate or the P. No. for the deceased's estate ifproceedings have already commenced.

(b) Duty to Investigate: Demandant. Prior tofiling a demand for notice in other than a pendingprobate proceeding, the demandant shall make adiligent search of the records of the circuit court inwhich the demand is being filed to determinewhether probate proceedings have previously beenfiled. The Demand for Notice shall contain astatement that such search has been conducted.

(c) Duty to Investigate: Petitioner. Prior tofiling a petition to commence a probate proceeding,the petitioner shall make a diligent search of therecords of the circuit court in which the petition isbeing filed to determine whether a demand for noticehas been filed with respect to the deceased.



(d) Validity of Demand. A Demand for Noticefiled other than in a pending probate proceeding shallbe effective for a period of five years from the dateof filing. A Demand for Notice shall only beeffective for the circuit in which it is filed.

COMMENTARY:This rule attempts to clarify the

ambiguous status of a Demand for Noticeand to make sure that demands are not lostin the system. This rule puts an equal burdenon the demandant and the petitioner tocheck the court records for pendingdemands and proceedings since thedeceased's death or for a five-year period,whichever is shorter. The court should nothave to check the files to determine ifdemands have been made.

Rule 89. TERMINATION OF POSSESSIONOF REAL PROPERTY.

Termination of possession of real property heldby the estate and distribution to those entitled theretomay be ordered on an ex parte basis upon petitionthat (1) states that the property is not necessary to thefull and complete settlement of the estate and (2) isaccompanied by the joinders of the beneficiaries whoare entitled to the property under the will or the lawsof intestacy.

COMMENTARY:A personal representative has the

authority to transfer assets of the estate,including real property, without court order,except under certain circumstances withrespect to the sale of real property. HRS §560:3-715. The Land Court statute, HRS §501-171(a), provides for the transfer of aninterest in real property from a probateestate to be supported by a court order ofdistribution, but no corresponding provisionexists for Regular System property. In orderto maintain consistency in probate courtpractice and procedures, this rule providesfor an order terminating possession ofproperty for all transfers during theadministration of an estate, except thoseresulting from a sale (covered by otherrules) or at termination and final

distribution of the estate (covered by theorder approving final accounts.)(Amended June 25, 2003, effective July 1, 2003.)

Rule 90. STATUTORY ALLOWANCES.(a) Homestead Allowance and Exempt

Property. Property subject to a claim for HomesteadAllowance or Exempt Property shall be distributedby the personal representative without court orderupon the submission of a claim for such allowancesby an eligible person to the personal representative.The person or persons receiving the allowance orproperty shall sign a receipt therefor.

(b) Family Allowance. A family allowanceaggregating no more than $18,000 shall bedistributed by the personal representative withoutcourt order upon the submission of a claim thereforby an eligible person to the personal representative.Family allowances in excess of $18,000 in theaggregate shall be paid only upon court order afterpetition by the individual or individuals seeking theallowance, with notice to all interested personsincluding creditors who have filed unsatisfied claimsagainst the estate. The personal representative ispermitted to assist and use estate resources to prepareand pursue the petition for family allowance incooperation with or on behalf of those entitled to it.The person or persons receiving a family allowanceshall sign a receipt therefor.

COMMENTARY:Common court practice requires the

filing of a claim, notice, hearings, and anorder for the payment of statutoryallowances. However, the governing statutes(HRS §§ 560:2-401 through -404) do notrequire a court order and make it clear thatthe allowances are to be paid by thepersonal representative upon claim. Thisrule reverses the common practice in favorof the statutory scheme.

(c) Elective Share. A petition for elective shareshall be served upon all interested persons, includingany recipient or beneficiary of property that may beincluded in the augmented estate. Any notice ofhearing shall contain a statement notifying interestedpersons that they are required to file and serve,within 30 days from the date of service of the



petition, a statement describing any property theyreceived from the decedent within two years of thedecedent's death, its value if known, and the date itwas received. Within 30 days from the date ofservice of the petition, any recipient of property thatmay be included in the augmented estate shall fileand serve upon all interested parties a statementsetting forth a description of the property, its value ifknown, and the date it was received.

COMMENTARY:Under prior law, which allowed the

surviving spouse an elective share of 1/3 ofthe net probate estate, the elective sharepetition was heard in conjunction with thepetition for approval of final accounts. Thenew law gives the surviving spouse apercentage of the augmented estate, whichincludes property the decedent transferredto others, either by inter vivos gift or atdeath. Therefore, a separate hearing must beheld to determine (a) the applicablepercentage the surviving spouse is entitledto; (b) what assets are included in theaugmented estate; and (c) the order in whichassets shall be applied to satisfy the electiveshare. Creditors are not interested personswho must be served with the elective sharepetition. Recipients who are entitled tonotice include but are not limited to trusteesof trusts established by the decedent,beneficiaries under insurance policies orretirement accounts, joint tenants, andbeneficiaries of trusts established by thedecedent.(Amended November 12, 1997, effective

December 15, 1997.)

Rule 91. AFFIDAVITS OF COLLECTION.Where more than one person has equal standing

to present an affidavit of collection, the personholding the asset to be collected shall transfer theasset to the first person who presents an affidavit inproper form, and the transferring person shallthereafter have no liability to any other person. Laterclaimants who claim that they have greater priority orright to the asset to be collected may bring aproceeding to determine rights to collected assets.

COMMENTARY:This rule clarifies that the court will

consider disputes between conflictingclaimants under an affidavit of collection.(Note that to transfer an automobile, theremust be coordination with the financingentity which usually holds the Certificate ofOwnership, the person seeking the transferwho usually holds the Certificate ofRegistration, and the county financedepartment.)

Rule 92. TRANSFER OF TYPE OFPROCEEDING.

When a personal representative discovers afterthe commencement of a proceeding that the assets ofthe estate are greater in amount than originallythought, and that the value of the assets therebyexceeds the proper jurisdictional amount for a smallestates proceeding, the personal representative shallpetition the court for change to informal, formal, orsupervised proceedings. Likewise, where the assetsof the estate are less than originally thought, thepersonal representative in his or her discretion maypetition the court for change to a small estatesproceeding. In the event that the notice requirementsfor the new procedural level are more stringent thanthe notice requirements originally followed, the morestringent requirement shall be satisfied prior to thecourt granting the petition.

COMMENTARY:This rule simplifies the transfer of a

proceeding from small estates to informal orsupervised and vice versa. With the use of asingle case number under Rule 50 for allproceedings relating to a particulardeceased, no petitions to terminate one levelof proceeding and transfer of documents tonew files will be necessary, as all factualdata and prior determinations can remain ineffect. The rule recognizes that noticerequirements may be different for differentlevels of proceedings and therefore requiresthat the more stringent requirement besatisfied. For example, there is a one-timepublication requirement for estates under$10,000 compared to the three-timepublication requirement for estates subject



documents pursuant to Rule 15(d) of the Hawai#iProbate Rules.

(b) Acknowledgment. If the Application forIssuance of Acknowledgment of Authority isapproved by the Registrar, the Registrar shall issuean Acknowledgment of Authority, which shall expirethree years from the date of issuance, and suchlimitation shall be stated on the face of theacknowledgment of authority.

(Added June 25, 2003, effective July 1, 2003.)

Rules 96.-99. RESERVED.

PART C. CONSERVATORSHIP ANDGUARDIANSHIP PROCEEDINGS

PREFATORY NOTE: Unless otherwiseprovided, in Part C of these rules, the same rules thatapply to conservatorship apply to guardianship of theproperty.

I. COMMENCEMENT OF PROCEEDING

Rule 100. CASE NUMBERS.(a) Except as provided in subsection (b), the

clerk of the court shall assign a C. No. to allproceedings for conservatorship. A person preparinga pleading shall indicate the C. No. and immediatelybelow the C. No., in parentheses, a notation ofwhether the matter is for Protective Arrangement,Conservator of Minor, Conservator of Adult, orSmall Conservatorship.

(b) Initial Protective and GuardianshipProceedings. The party may file one petition for aprotective proceeding and for a guardianship of thesame adult, which petition shall be assigned a CG.No. A person preparing a pleading shall indicate theCG. No. and immediately below the CG. No. inparentheses, a notation that the matter is forConservator and Guardian of Adult. The petitionshall also comply with the notice requirementsapplicable to both protective proceedings andguardianship proceedings. The petition shall alsoinclude all of the information required in HRS §§560:5-304 and 560:5-403.

COMMENTARY:1995 Commentary: This rule brings the

guardianship practice in line with theprobate practice under Rule 50, in that allguardianship of the property proceedings,no matter what the jurisdictional proceduralamount, will have one case number. Thus, ifa small guardianship grows beyond theclerk's jurisdiction, or a regularguardianship is depleted to the point offalling within the small guardianshipsjurisdiction, change of the jurisdictionalprocedure can be done simply by a petitionand order to note the changedcircumstances, and a new proceeding neednot be initiated.

Indicating the nature of the proceedingbelow the case number will help clarify thecontext of the guardianship and the rules tobe applied. A guardianship of a minorterminates automatically upon the minor'sattaining the age of majority oremancipation unless extended by the court.If an incapacitated minor is underguardianship, then upon attaining majority,the guardian should file a petition tocontinue the guardianship as one for anadult.

2004 Commentary: Under HRS § 560:5-106, the probate court has exclusivejurisdiction over protective proceedings andconcurrent jurisdiction with family courtover guardianships of adults in cases wherethere is also a protective proceedingconcerning the adult. Changing "G. No." to"C. No." reflects terminology in Article V ofChapter 560, effective January 1, 2005,where "guardian" is used instead of"guardian of the person" and "conservator"instead of "guardian of the property." Inaddition, H.R.S. §§ 571-14 and 603-21.5were amended to provide the probate courtconcurrent jurisdiction with family courtover adult guardianships, effective January1, 2005, consistent with subject matterjurisdiction provisions in Article V of theHawaii 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


(Release: 06/06) HPR–48A

for cases where guardianship andconservatorship are sought for the sameadult person at the outset of the case.Guardianship (formerly "guardianship ofthe person") proceedings for an adult personinitiated in the Family Court (in casesbearing an "FC-G" case numberdesignation) and conservatorship (formerly"guardianship of the property") proceedingsfor the same adult person initiated inprobate court (in cases initiated before theHawai#i Probate Rules were adopted,bearing an "SP" number, or in casesinitiated under the Probate Rules effectiveprior to January 1, 2005, bearing a "G. No."or in cases initiated on or after January 1,2005, bearing a "C. No."), if consolidated inthe probate court (as permitted effectiveJanuary 1, 2005), will retain both separatecase numbers and will not be assigned a"CG." number.

To the extent practicable, all Hawai#iProbate Rules and administrative ordersthat presently apply to "guardianship of theproperty" (G. No.) proceedings shall alsoapply to "conservatorship" and"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 asettlement or judgment from any claim or action, aconservatorship action must be initiated by theplaintiff's attorney and any settlement approved bythe court insofar as it affects the prjotected person orrespondent. The judge presiding in probate shallappoint a conservator for the minor or incapacitatedindividual and determine whether any settlement isreasonable.

COMMENTARY: Too frequently in tort actions, the

plaintiff's attorney forgets about the need fora conservator to represent the interest of aninjured person and then attempts to have thetrial judge assume jurisdiction of a

conservatorship proceeding to wrap intoany settlement or judgment. While this maynot cause problems outside the First Circuit,in that judges of the other circuits aregenerally experienced in conservatorshipmatters, if a trial judge in the First Circuitassumes jurisdiction of the conservatorshipfor purposes of disposition of the tort action,very often the requirements of the statuteand rules are not met and theconservatorship has to be "cleaned up" laterby the probate judge. By requiring theprobate judge, and not the trial judge, topass on matters with respect to the receipt ofa settlement or award, greater efficiency willresult as "clean up" proceedings should beeliminated. (Amended April 28, 2006, effective July 1, 2006.)

[ Next page is HPR--49. ]



Rule 102. PHYSICIAN'S LETTERS.(a) Conservatorship. The petitioner for

conservatorship may submit a physician's letter orreport which states: (1) the respondent's ability toreceive and evaluate information or to make orcommunicate decisions (even with the use ofappropriate and reasonably available technologicalassistance) is impaired; (2) the medical cause(diagnosis) of said impairment; (3) the prognosis forthe impairment; (4) the impact of the impairmentupon the individual's ability to manage theindividual's property and business affairs effectively;(5) how long the physician has been treating therespondent; and (6) any other matter the physiciandeems relevant.

(b) Guardianship. The petitioner forguardianship may submit a physician's letter or reportwhich states: (1) the respondent is unable to receiveand evaluate information or make or communicatedecisions to such extent that the individual lacks theability to meet essential requirements for physicalhealth, safety, or self-care (even with the use ofappropriate and reasonably available technologicalassistance); (2) a description of the nature, type, andextent of the respondent's impairment; (3) theprognosis for the impairment; and (4) any othermatter the physician deems relevant.

COMMENTARY: Doctors are generally reluctant to

declare a person "incompetent," butincompetency is not the test for protectiveproceedings. This rule clarifies that theletter or report of the doctor upon which apetition for conservatorship andguardianship relies must (1) address theperson's ability to manage the person'sproperty and affairs in an effective manner,if the person's ability to receive and evaluateinformation or to make or communicatedecisions is impaired, even with the use ofappropriate and reasonably availabletechnological assistance, HRS § 560:5-401,and (2) provide other information to enablethe court to evaluate the weight to be givento the letter or report.(Amended April 28, 2006, effective July 1, 2006.)

II. HEARINGS

Rule 103. FLAG SHEETS.An original and no fewer than two copies of flag

sheets in the form ordered by the court shall bepresented to the clerk of the court for all hearings toappoint a conservator, to appoint a conservator anda guardian for an incapacitated adult, to compromisea tort claim on behalf of a minor or incapacitatedperson, and to confirm the sale of real property.These flag sheets shall be presented to the court nolater than ten days prior to the scheduled hearing.Flag sheets shall not be file-marked as a pleading butshall be date-stamped by the clerk and placed in thecourt file for reference. Failure to present a requiredflag sheet in time shall cause the hearing to becontinued to the next available date. Where the factsof the case as set forth in the flag sheet change aftersubmission of the flag sheet to the court, an amendedflag sheet shall be presented.

COMMENTARY:This rule makes flag sheets mandatory in

all conservatorship and guardianshipproceedings in all circuits. The flag sheetsare not filed as pleadings but aredate-stamped as having been received by theclerk, to eliminate the chance for lostdocuments and to provide a clear record.The flag sheet is normally placed in thecourt's file for ready reference by the judgeand court staff. It is anticipated that, with anappropriate top margin for the date-stamp,the flag sheets will follow generally theformat of current flag sheet forms 1-C and1-D; ideally, they will be prepared aspre-printed forms.(Amended June 25, 2003, effective July 1, 2003;

further amended April 28, 2006, effective July 1,2006.)



III. NOTICE

Rule 104. TO WHOM.(a) Conservatorship. The petitioner in a

conservatorship or protective arrangementproceeding shall notify the persons designated bystatute and shall also serve notice on:

(1) Any attorney appointed by the court torepresent the respondent.

(2) The Department of Veterans' Affairs in caseswherein the respondent is a veteran of the militaryreceiving benefits from that department.

(3) Any other attorney representing therespondent.

(4) Any Kokua Kanawai appointed pursuant toRule 113.

(5) Any guardian ad litem appointed pursuant toHRS §560:5-115.

(b) Guardianship. The petitioner in aguardianship proceeding shall notify the personsdesignated by statute and shall also serve notice on:

(1) Any attorney appointed by the court torepresent a respondent.

(2) Any other attorney representing therespondent.

(3) Any Kokua Kanawai appointed pursuant toRule 113.

(4) Any guardian ad litem appointed pursuant toHRS §560:5-115.

COMMENTARY: This rule is consistent with HRS §§

560:5-205, 560:5-404 and 560:5-309 anddoes not require service of notice of aconservatorship or guardianship proceedingon a child under the age of fourteen.(Amended April 28, 2006, effective July 1, 2006.)

Rule 104.1. DEMAND FOR NOTICE.(a) Preparation and Filing: (1) CONSERV ATORSH IP. A person filing a

Demand for Notice shall set forth the name of therespondent or protected person, any known aliases,the nature of the interest of the demandant in theestate, and the address of the demandant or thedemandant's attorney. The clerk of the court shallassign a C. No. to the Demand for Notice if noproceedings have been commenced for therespondent or protected person's estate or the C. No.

or G. No. for the respondent or protected person'sestate if proceedings have already commenced.

(2) CONSERVATORSHIP AND GUARDIA NSHIP . Aperson filing a Demand for Notice shall set forth thename of the respondent or protected person, anyknown aliases, the nature of the interest of thedemandant in the person and/or estate, and theaddress of the demandant or the demandant'sattorney. The clerk of the court shall assign a CG.No. to the Demand for Notice if no proceedings havebeen commenced for the respondent or protectedperson's estate or the CG. No. for the respondent orprotected person's estate if proceedings have alreadycommenced.

(b) Duty to Investigate: Demandant. Prior tofiling a demand for notice in other than a pendingconservatorship and/or guardianship proceeding, thedemandant shall make a diligent search of therecords of the circuit court in which the demand isbeing filed to determine whether conservatorshipand/or guardianship proceedings have previouslybeen filed, and a diligent search of the records of thefamily court in the circuit in which the demand isbeing filed to determine whether guardianshipproceedings have previously been filed in familycourt, and shall state in the Demand for Notice thatsuch search has been conducted.

(c) Duty to Investigate: Petitioner. Prior tofiling a petition to commence a conservatorshipand/or guardianship proceeding, the petitioner shallmake a diligent search of the records of the circuitcourt in which the petition is being filed and adiligent search of the records of the family court inthe circuit in which the petition is being filed todetermine whether a demand for notice has beenfiled with respect to the respondent or protectedperson.

(d) Validity of Demand. A Demand for Noticefiled other than in a pending conservatorship and/orguardianship proceeding shall be effective for aperiod of five years from the date of filing. ADemand for Notice shall be effective only for thecircuit in which it is filed.

(Added June 25, 2003, effective July 1, 2003;further amended April 28, 2006, effective July 1,2006.)



limited in role to responding to the petitionfor protective proceeding. The KokuaKanawai, without prior court order, has noauthority to initiate actions on behalf of therespondent. Rather, the court could appointan attorney for the respondent.

Given this relationship and role, theKokua Kanawai does not represent therespondent, and, therefore, service upon theKokua Kanawai does not constitute serviceon the respondent. Rule 104 requires thatnotice be served on a respondent or attorneyeven when a Kokua Kanawai is appointedand served.

To enable the Kokua Kanawai to fullyreview the pertinent facts and make a fairrecommendation to the court, this rule givesthe Kokua Kanawai authority to review themedical records of the protected person.Hawai‘i Rules of Evidence 504(c) and504.1(c), relating to the physician-patientand psychologist-client privileges, providethat the conservator or guardian for thepatient or client may claim the privilege.However, Hawai‘i Rules of Evidence504(d)(3) and 504.1(d)(3) provide that thereis no privilege as to a communicationrelevant to the physical, mental, oremotional condition of the patient or clientin which the patient or client relies upon thecondition as an element of the person'sposition with respect to the proceeding.Thus, where the Kokua Kanawai is acting onbehalf of the court, that person may andmust have access to the medical andpsychological records of the respondent tobe able to fully advise the court, but may notthereby further reveal any privilegedinformation.(Amended April 28, 2006, effective July 1, 2006.)

Rule 113.1. C O N F I D E N T I A L I T Y O FRECORDS.

In proceedings for guardianships andconservatorships, any written report of a KokuaKanawai, any court-ordered professional evaluation,and any responses or objections thereto, shall besealed upon filing. A court order will continue to berequired to authorize the clerk to unseal aconfidential report or evaluation.

COMMENTARY:HRS §560:5-307 and HRS §560:5-407

require Kokua Kanawai reports andprofessional evaluations to be sealed uponfiling, but made available to the court; therespondent (without limitation as to use); thepetitioner, the Kokua Kanawai, thepetitioner's and respondent's lawyers (forpurposes of the proceeding); and otherpersons (for any purpose the court mayorder for good cause).

The comment that accompanies bothArticle 307 and Article 407 of the UniformGuardianship and Protective ProceedingsAct explains:

. . . . This section is designed toprotect the respondent's privacy, butstill make the records accessiblewhen needed to any of the involvedparties or to others on a showing ofgood cause. The drafting committeerecognized that "watch-dog"groups, the media, and others canperform essential functions ofdeterring abuse and facilitatingreform, and in drafting thisprovision balanced the need toprotect the respondent's privacywith the need of others to accessthis information.Normally, documents are not filed under

seal without a court order, which the filingparty may seek by ex parte petition. Thisrule makes clear, however, that court staffmust file under seal Kokua Kanawai reportsfiled pursuant to §560:5-303(e) or §560:5-406(e), and reports of a "physician,psychologist, or other individual appointedby the court who is qualified to evaluate the



VIII. FEES

Rule 117. C O N S E R V A T O R ’ S F E E S :BASIS AND AMOUNT.

Unless otherwise ordered by the court, aconservator shall be entitled to charge and collectagainst the conservatorship estate compensation inthe amount equal to that permitted by statute to becharged by trustees of a private trust under Hawai‘iRevised Statutes Section 607-18.

COMMENTARY: HRS § 560:5-417 allows the conservator

"reasonable compensation." Much confusionhas resulted in trying to determine theappropriate basis for a conservator'scompensation. By using the trustee feeschedule, certainty will result with aconsistent fee schedule for similar work. (Amended April 28, 2006, effective July 1, 2006.)

IX. TERMINATION OF PROCEEDINGS

Rule 118. SPECIAL CONSERVATORSHIPSA N D P R O T E C T I V EARRANGEMENTS.

When a special conservator has been appointedon an ex parte basis, unless otherwise provided bycourt order, the authority of the special conservatorterminates automatically 90 days after the issuance ofthe letters of special conservatorship, unless there isthen pending before the court a petition forappointment of a permanent conservator or a petitionto extend the appointment of the special conservatorfor good cause, in which case the specialconservator's appointment continues until the courtorders otherwise. A special conservator whosepowers are terminated automatically shall account tothe court for his or her actions.

COMMENTARY: If a special conservatorship or

protective arrangement is established on anex parte basis and a need for a permanentconservator is evident, the protected personmust be given rights to due process tochallenge the conservatorship imposedwithout notice or hearing. This rule forces a

special conservator to promptly file forpermanent conservatorship or faceautomatic termination after 90 days, therebygiving the protected person the opportunityto challenge the proceedings. If a permanentconservatorship petition or a petition toextend the special conservator's appointmentis pending, the special conservator'sauthority is extended until further courtorder.

Ideally, where the need for a permanentconservator is evident, all ex parte petitionsfor appointment of a special conservator willbe accompanied by the petition forappointment of a permanent conservator, sothat there are no delays in determining therights of the protected person. Othersituations may arise where there is no needfor a permanent conservator, but theoriginal 90 day period is not sufficient forthe special conservator to complete his orher duties, and the special conservator'sappointment may be extended by the courtfor good cause.(Amended June 25, 2003, effective July 1, 2003;

further amended April 28, 2006, effective July 1,2006.)

Rule 119. EX PARTE TERMINATION OFPROCEEDINGS.

Within 60 days of the death of the protectedperson or within 60 days of the minor attaining theage of majority or emancipation, the conservatorshall file a final report, and a petition for approval offinal accounts, termination of conservatorship, anddischarge. In the petition, the conservator shall setforth the relevant facts and attach any approval of theaccounts signed by the personal representative of theprotected person's estate or the former protectedminor. If such approval is attached to the petition, theconservator may present the petition on an ex partebasis.

COMMENTARY: 1995 Commentary: HRS § 560:5-430

was amended in 1992 to eliminate therequirement for a hearing to terminate aguardianship where the guardianshipautomatically terminates because of the



II. NOTICE

Rule 152. METHOD OF PROVIDINGNOTICE.

The petitioner for determination of death shallserve notice on all individuals named in the petitionin the manner provided by Rule 7 and shall causepublication of the notice in a newspaper of generalcirculation in Hawai#i once a week for threeconsecutive weeks, addressed to the missing person,including that person's date of birth and socialsecurity number, if known, and notifying that personof the filing of the petition and the date and time setfor hearing. In addition, petitioner shall serve noticeof the hearing on the alleged decedent at his or herlast known address by registered or certified mail.

COMMENTARY.This rule establishes standard notice

requirements consistent with those used inother proceedings before the probate court.

(Amended November 12, 1997, effectiveDecember 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 reasonablycertain from the circumstances of the disappearance,or (b) the person has been missing for a period of atleast five years, during which the person has not beenheard from and whose absence is not explained afterdiligent search and inquiry, the court may issue anOrder Determining Death. The Order DeterminingDeath shall set forth (a) the likely date and placedeath occurred based on the evidence, or (b) if thecourt cannot determine the likely date, the date andplace of death as being the date five years afterdisappearance at the place the missing person waslast seen or heard from.

COMMENTARY:This rule clarifies the two most common

situations giving rise to a determination ofdeath: the catastrophic incident where deathis certain to have occurred but no body wasrecovered and the unexplaineddisappearance. In the former case, the courtmay set the time and date of disappearance.In the latter case, the statute determines thedeath to have occurred five years afterdisappearance. In compliance with StateDepartment of Health requirements, thisrule requires the court to include in its orderspecific wording regarding the timing andplace of death.

HAWAI#I PROBATE RULES Exhibit A


EXHIBIT A

MEDIATION RULES FOR PROBATE,TRUST, CONSERVATORSHIP, AND

GUARDIANSHIP (MEDIATION RULES)

Adopted and promulgated by the Supreme Court of the State of Hawai#i, August 23, 1996,

effective October 1, 1996.

Rule 1. P R O B A T E , T R U S T ,CONSERVA T O R S H I P , ANDGUARDIANSHIP MEDIATION.

The probate court may refer probate, trust,conservatorship, and guardianship, cases in the Stateof Hawai‘i to mediation. Cases may be referred uponthe petition of a party, by written stipulation of allparties, or upon the court's own motion. Participationin the mediation is mandatory in all cases that thecourt refers to mediation.

(Amended April 28, 2006, effective July 1, 2006.)

Rule 2. INTENT AND APPLICATION OFRULES.

The purpose of probate, trust, conservatorship,and guardianship mediation is to provide parties withan alternative to litigation in probate, trust,conservatorship, and guardianship matters.


Rule 3. MATTERS SUBJECT TO MEDIATION.All contested probate, trust, conservatorship, and

guardianship matters subject to probate courtjurisdiction shall be eligible for referral to mediation.All probate, trust, conservatorship, and guardianshipcases referred to mediation shall abide by theseMediation Rules.


Rule 4. ASSIGNMENT TO MEDIATOR.(A) Parties may jointly select any person to

serve as a mediator who has agreed to serve on aprivate basis. Such stipulation must be made withintwenty (20) days after referral to mediation and mustinclude a statement signed by the mediatorexpressing his or her willingness to mediate under

the Mediation Rules. Alternatively, the court willassign a mediator to the case.

(B) Mediators shall be compensated, unlessotherwise determined by the court. All fees orexpenses related to the use of mediators in casesreferred to mediation shall be borne by the parties,and not by the estate, unless otherwise ordered by thecourt.

Rule 5. AUTHORITY OF MEDIATORS.Mediators shall work with the parties to facilitate

agreements on substantive and procedural mattersand attempt to aid in the voluntary resolution ofcases. Mediators shall terminate the mediation if themediator believes the process is unproductive or thatany party or attorney is not mediating in good faith.Mediators may recommend to the court that sanctionsbe imposed against a party or attorney who has failedto comply with these Mediation Rules. Mediatorsshall not issue decisions or make procedural orsubstantive recommendations about the case to thecourt.

Rule 6. ATTENDANCE AT THE MEDIATION.If a party is represented by counsel, counsel with

the most direct relationship to the party for thepurpose of settlement shall participate in themediation. The mediator may request that parties orthird persons attend the mediation. If the mediatorbelieves the presence of parties or third persons iscritical to the resolution of a case, the mediator mayrequire them to attend the mediation.

Rule 7. CONFIDENTIALITY.The mediator shall not communicate any matters

discussed at the mediation conference to any court.Likewise, parties and attorneys are prohibited frominforming the court of discussions or actions taken atthe mediation. This rule does not require theexclusion of any evidence otherwise discoverablemerely because it was presented in the course of themediation. This rule also does not require exclusionof evidence that is offered for another purpose suchas proving bias or prejudice of a witness, negating acontention of undue delay, or proving an effort toobstruct a criminal investigation or prosecution.

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 sanctionsagainst any party or attorney for failure to complywith these Mediation RULES. Before imposition ofa sanction, the court shall issue an order to showcause as to why a sanction should not be imposed.Sanctions may include costs and attorneys' feesreasonably incurred by all other parties to themediation and in the prosecution of the petition orrecommendation for sanctions.


Rule 9. IMMUNITY.Mediators selected by the parties or assigned by

the court pursuant to Rule 4 of these Mediation Rulesshall be absolutely immune from suit for all conductin the course of their official duties.