Rule 90 - Statutory Allowances(a) Homestead Allowance and Exempt Property. Property subject to a claim for Homestead Allowance or Exempt Property shall be distributed by the personal representative without court order upon the submission of a claim for such allowances by an eligible person to the personal representative. The person or persons receiving the allowance or property shall sign a receipt therefor. (b) Family Allowance. A family allowance aggregating no more than $18,000 shall be distributed by the personal representative without court order upon the submission of a claim therefor by an eligible person to the personal representative. Family allowances in excess of $18,000 in the aggregate shall be paid only upon court order after petition by the individual or individuals seeking the allowance, with notice to all interested persons including creditors who have filed unsatisfied claims against the estate. The personal representative is permitted to assist and use estate resources to prepare and pursue the petition for family allowance in cooperation with or on behalf of those entitled to it. The person or persons receiving a family allowance shall sign a receipt therefor. COMMENTARY:
Common court practice requires the filing of a claim, notice, hearings, and an order for the payment of statutory allowances. However, the governing statutes (HRS §§560:2-401 through -404) do not require a court order and make it clear that the allowances are to be paid by the personal representative upon claim. This rule reverses the common practice in favor of the statutory scheme.
(c) Elective Share. A petition for elective share shall be served upon all interested persons, including any recipient or beneficiary of property that may be included in the augmented estate. Any notice of hearing shall contain a statement notifying interested persons that they are required to file and serve, within 30 days from the date of service of the petition, a statement describing any property they received from the decedent within two years of the decedent's death, its value if known, and the date it was received. Within 30 days from the date of service of the petition, any recipient of property that may be included in the augmented estate shall file and serve upon all interested parties a statement setting forth a description of the property, its value if known, and the date it was received. A flag sheet shall be presented pursuant to Rule 81 for any hearing on a petition for elective share. COMMENTARY:
Under prior law, which allowed the surviving spouse an elective share of 1/3 of the net probate estate, the elective share petition was heard in conjunction with the petition for approval of final accounts. Current law gives the surviving spouse a percentage of the augmented estate, which includes property the decedent transferred to others, either by inter vivos gift or at death. Therefore, a separate hearing must be held to determine (a) the applicable percentage the surviving spouse is entitled to; (b) what assets are included in the augmented estate; and (c) the order in which assets shall be applied to satisfy the elective share. Creditors are not interested persons who must be served with the elective share petition. Recipients who are entitled to notice include but are not limited to trustees of trusts established by the decedent, beneficiaries under insurance policies or retirement accounts, joint tenants, and beneficiaries of trusts established by the decedent.
A reference to the flag sheet requirement of Rule 81 is added for clarity.
Amended November 12, 1997, effective 12/15/1997; amended May 15, 2008, effective 7/1/2008