Rule 126 - Trust Proceedings(a) Petition. A trustee or interested person shall commence any proceeding relating to a trust by filing a petition complying with Rule 3. COMMENTARY:
This rule clarifies that a trust proceeding is an equity proceeding subject to these rules, rather than a civil action subject to the Hawai'i Rules of Civil Procedure.
(b) Vesting Orders. Any interested person seeking an order vesting title to trust assets in a successor trustee shall petition the court, setting forth the name of the settlor of the trust, the date the trust was created, the nature and value of the trust assets, the name and address of the trustee being replaced, the names and addresses of the current beneficiaries, name and address of the nominated successor trustee, and the authority (by trust provisions or statute), if any, by which the nomination or appointment of the successor trustee was made. If all persons entitled by statute or the trust provisions to appoint a successor trustee join in the petition, the court may issue the vesting order ex parte. COMMENTARY:
This rule clarifies the means by which a vesting order may be obtained where a mechanism exists either by statute or the governing instrument for selection of a successor trustee. In such situations, third parties dealing with the successor trustees may desire proof of the trustee's authority to act, and a vesting order may be obtained. Where all persons who by statute or the governing instrument join in the petition, the vesting order will be issued on an ex parte basis, because there are no issues for the court to decide.
(c) Instructions. A trustee or other interested person seeking an interpretation of a trust instrument or instructions regarding the administration of the trust may file a petition, setting forth the name of the settlor of the trust, the date the trust was created, the nature and value of the trust assets, the name and address of the trustee, the names and addresses of the current beneficiaries, the names and addresses of any contingent or remainder beneficiaries whose rights may be affected by the issue raised in the petition, the trust provisions applicable to the issues raised in the petition, and a description of the specific issues for which instructions are sought. The court may appoint a guardian ad litem to represent the interests of unborn, unascertained, or minor beneficiaries. The petitioner shall serve notice of the date, time, and place of the hearing on all interested persons. COMMENTARY:
This rule clarifies the information required to obtain instructions from the court. A hearing will almost always be required. To preserve the privacy of the trust, only those provisions of the trust that are in issue must be presented to the court.
(d) Approval of Accountings. Where an order is sought for approval of a trustee's accounts, the petition shall comply with the requirements of Rules 25, 26, and 27 and shall in addition set forth the name of the settlor of the trust, the date the trust was created, the name and address of the trustee, and the names and addresses of any vested remainder beneficiaries. The court may appoint a guardian ad litem to represent the interests of unborn, unascertained, or minor beneficiaries. Notice of the time and date of the hearing shall be given to all interested persons named in the petition. COMMENTARY:
This rule clarifies the information required for approval of a trustee's accounts. In addition to the general requirements of Rule 26, additional information regarding the origination of the trust is required. To encourage the trustee to maintain current records of vested remainder takers, they must be identified in the petition.
(e) Distribution of Assets to Missing Beneficiaries. When a trustee is unable to locate a beneficiary entitled to real or personal property, at the termination of the trust, the trustee shall dispose of the unclaimed assets by complying with the requirements of Hawai'i Revised Statutes § 560:3-914. Amended June 25, 2003, effective 7/1/2003; further amended September 29, 2003, effective 9/29/2003.