Overview: Responding when someone asks the probate court for possession or control of estate property
This article explains, in plain language, the typical steps a person in Hawai‘i should consider when they want to challenge or seek dismissal of a probate petition that asks the court to grant someone possession and/or control of estate property. It outlines the common legal grounds to oppose a petition, the practical steps for doing so, and where to find the Hawai‘i statutes and court resources you will likely need.
Detailed answer
In Hawai‘i the probate court manages estate administration, including petitions that ask the court to give a person temporary or permanent possession and control of estate property. If you want to challenge or dismiss such a petition, you generally must:
- Identify your legal status and interest. Only “interested persons” (heirs, beneficiaries, creditors, nominated personal representatives, etc.) typically have standing to object. Review the petition to see who filed it and on what legal basis they claim entitlement.
- Review the petition and supporting documents carefully. Check the relief requested, the facts asserted (decedent’s assets, will or lack of will, prior appointments of a personal representative), and any affidavits, inventories, or receipts attached to the petition.
- Look for procedural defects. Courts can dismiss or deny relief if the petitioner failed to comply with statutory rules: improper service or notice, lack of jurisdiction, or failure to follow notice, filing, or bond requirements. See the Hawaii Probate Code (HRS chapter 560) for filing and notice requirements: https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/
- Consider substantive defenses. Common grounds to challenge include: the petitioner lacks legal authority (no appointment as personal representative), the requested possession is not necessary or would harm estate interests, the property is not estate property, the petitioner’s claim conflicts with the will or governing documents, or the petition misstates the facts or law.
- File a written objection or response with the probate court. Procedurally you will usually need to file a written objection (sometimes called an “Answer” or “Objection to Petition”) and serve it on the petitioner and other interested parties. State the specific facts and legal grounds for your opposition and request a hearing. Check the local probate rules or the court’s self-help pages for form names and filing procedures: https://www.courts.state.hi.us/self-help/probate
- Request interim relief if needed. If immediate possession by the petitioner would cause irreparable harm (loss of assets, risk to property, or waste), you may ask the court for temporary orders, a hearing on emergency relief, or to impose conditions or a bond while the dispute is decided.
- Prepare evidence and request discovery, if appropriate. Gather deeds, title records, account statements, inventories, communications, and any documents that show ownership, control, or misuse. If the court allows, use subpoenas or discovery to obtain needed records.
- Attend the hearing and present your case. At the hearing, be ready to explain why the petition should be denied or limited. Present documents, witness testimony, and legal arguments showing lack of standing, lack of necessity, procedural defects, or other grounds for dismissal.
- Consider settlement or limited orders. Probate disputes are often resolved by compromise. You might negotiate restricted possession, an accounting, agreed bonding, or appointment of a neutral custodian while the estate is administered.
- If needed, appeal. If the court grants possession improperly, you may have an appeal right. Meet appeal deadlines and procedural requirements in Hawai‘i courts.
These steps are general. The exact process, required documents, timeline, and available remedies depend on the facts and local court rules. For statutory guidance, start with the Hawai‘i Probate Code (HRS chapter 560): https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/
Common legal grounds to ask the court to dismiss or deny the petition
- Improper service or lack of notice to interested persons.
- Petitioner lacks statutory authority (not appointed as personal representative or otherwise authorized).
- Petitioner failed to meet bond, accounting, or filing requirements.
- Subject property is not part of the estate or is owned by someone else.
- Petition contains material factual errors or lacks necessary documentary support.
- Risk of waste, dissipation, or mismanagement of estate assets absent different or more protective court orders.
- Conflict with a valid will or prior court order already governing possession/control.
How to file an objection or motion in practical terms
Follow these practical steps to make an effective objection:
- Check the probate court’s forms and filing procedures: https://www.courts.state.hi.us/self-help/probate
- Draft a clear written objection that: identifies the petition, states your interest in the estate, lists precise objections, requests specific relief (dismissal, denial, hearing, or protective orders) and cites any supporting facts or law.
- Attach copies of documents that support your position (deeds, bank records, correspondence).
- Serve the objection on the petitioner and other listed interested parties in the case as the court rules require.
- File the objection with the probate clerk, pay any filing fee (or request a fee waiver if eligible), and keep proof of filing and service.
- Request a hearing date or respond to any hearing date the court sets.
If you are unsure about forms or timing, call the probate clerk’s office for procedural guidance. Clerks can explain how to file and what forms are available but cannot give legal advice.
Evidence and hearing tips
- Bring original documents or certified copies showing ownership, title, or appointing instruments.
- Prepare a short witness list and organize testimony to address the specific relief sought by the petitioner.
- Be concise and focus on the narrow legal issues: standing, jurisdiction, necessity, and authority to possess or control the asset.
- Ask the court to limit possession or require a bond if the petitioner will have control pending final resolution.
When to consult an attorney
If the petition asks for significant control of estate assets, involves complicated title or trust issues, or if the petitioner appears likely to dissipate estate property, you should consult an attorney. An attorney can:
- Analyze standing and statutory authority under HRS chapter 560: https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/
- Draft and file a strong objection or motion to dismiss.
- Represent you at hearings and in any resulting appeals.
Helpful hints
- Act quickly. Probate petitions can move fast. Missing a deadline can limit your options.
- Keep careful records of service, filings, receipts, and communications with the petitioner and the court.
- Ask the court to require a bond if the petitioner will control funds or property before full administration is complete.
- Consider limited relief—e.g., supervised access or an accounting—if full dismissal is unlikely but you want to protect estate assets.
- Use the Hawai‘i Judiciary self-help resources for probate to find local forms and clerk contact information: https://www.courts.state.hi.us/self-help/probate
- If you cannot afford an attorney, check local legal aid or pro bono resources in Hawai‘i.