Haw. Prob. R. 72
COMMENTARY:
This rule clarifies that extraordinary fees payable to the attorney and the personal representative are to be determined at the confirmation hearing if the attorney and personal representative desire, and may be paid out of escrow. By using this method, rather than waiting until final accounts, the fees are tied directly to the property sale and can have favorable income tax effects. Counsel should be certain to specify at the fees are to be paid from escrow at closing in the court order, so that escrow does not miss it.
Paying these fees from escrow as a portion of the sale fairly and timely compensates the personal representative and attorney and also may have tax advantages to the estate by clearly tying the fees to the sale as an expense of the sale. The language of the rule is permissive, however, as there may be reasons that the personal representative or attorney wants to wait until final accounts to have the fee approved.
Where a successful overbid is made at the confirmation of sale hearing and the original buyer's broker does not prevail, then the broker's commission shall be divided as follows:
| Broker | Commission Allowed |
| Seller's | One-half of approved commission on original offered price |
| Original Buyer's (unsuccessful) | One-third of approved commission on original price |
| Successful Buyer's | One-sixth of approved commission on original offered price plus 100% of approved commission on overbid amount |
No excise or sales taxes may be added to any commissions. Commissions shall be paid from escrow 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 the prior rule, if only one broker was involved, the court allowed only a 5% commission even if the parties had agreed to a 6% commission.
Haw. Prob. R. 72