Haw. Prob. R. 74

As amended through September 30, 2024

Rule 74 - Deposit of Will without Probate

(a) Method of Deposit. Any individual may deposit with the court the original will and any codicils for safekeeping without probate after the death of the individual who executed the will. Such deposit shall be accomplished by the filing of a Deposit of Original Will signed by the person presenting the will, and to the extent known to the person presenting the will, setting forth the name and all known aliases of the deceased, the date and place of death, and the names and addresses of all known heirs at law and persons named in the will, including the nominated personal representative. The Deposit of Original Will shall be accompanied by the original will and any known codicils and a certificate of death or other suggestion of death for the individual.

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

(c) Access to Deposited Will. A will, once deposited, shall be considered a public document and open for inspection by the general public. No certified copies of deposited wills may be issued.

(d) Maintenance of Original Will; Time Limits. Unless probated or withdrawn pursuant to Rule 75, an original will deposited with the court shall be maintained for 20 years after the death of the person who executed the will, after which period the will may be recorded by the clerk in some fixed form that will provide an accurate image of the original and then the original may be destroyed.

Haw. Prob. R. 74

COMMENTARY:

There is currently no formal mechanism for filing a will with the court without initiating a full probate proceeding, although HRS §560:2-516 provides that a custodian of a will, on request of an interested person, must deliver the will to a person able to secure its probate or to an appropriate court. This rule establishes a procedure whereby the custodian of a will can deposit the will with the court, without further responsibility, and create a case file in the court system from which a probate proceeding could be initiated without further procedural obstacles (such as transferring a deposited will to a probate proceeding). Because the custodian of the will is likely not being compensated for his or her efforts, the rule does impose a notice requirement on the custodian.

The deposit of a will is not a judicial proceeding but an administrative function. No determination as to the validity of a will is made when a will is received for deposit, and the deposit does not serve to bar the general five-year period in which to probate the will of a deceased. However, the deposited will is a public record open to inspection by the general public.

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