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NO. CAAP-19-0000097

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ESTATE OF

BYUNG TAE OH, Deceased

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(P. NO. 17-1-0230)

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.)

This appeal arises out of a proceeding in which

Petitioner-Appellee Wonki Oh (Petitioner) sought and obtained the

appointment of a special administrator for the estate of his

deceased father (Estate), Byong Tae Oh (Decedent), over the

objection of Respondents-Appellants Hie Sung Lee, Hyung Kee Oh,

and Heinjoo Oh, Decedent's surviving spouse, son and daughter,

respectively (collectively, Respondents). Respondents appeal

from the Order Discharging Special Administrator and Awarding

Fees and Costs (Order) and the Judgment on Order Discharging

Special Administrator and Awarding Fees and Costs (Judgment),

both entered on January 18, 2019, by the Circuit Court of the

First Circuit sitting in probate (Probate Court).1/

On appeal, Respondents contend that the Probate Court

erred in: (1) ordering that the fees and expenses of the special

administrator, and the attorneys' fees of Respondents and

Petitioner, be paid from the Estate, where the court lacked

jurisdiction over the Estate; (2) failing to order that

1/ The Honorable R. Mark Browning presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000097

16-FEB-2024

08:11 AM

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Petitioner pay the special administrator's fees and costs; and

(3) ordering that Petitioner's attorneys' fees be paid from the

Estate, even if the court had jurisdiction to do so.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Respondents' contentions as follows. 

I. Background

Decedent died in the Republic of Korea in February

2012. At the time of his death, Decedent was domiciled in the

Republic of Korea. 

On April 4, 2017, Petitioner filed a Petition for

Appointment of Special Administrator (Petition) in the Probate

Court. Petitioner sought appointment of a special administrator

in Hawai#i:

to identify any and all accounts, real property or other

tangible or intangible, real or personal property of the

Decedent, including those held by any agent of the Decedent,

located in Hawaii that should be or should have been

reported on Decedent's United States federal estate or gift

tax returns or any other estate or gift tax or similar

return required to be filed in another jurisdiction, either

as assets of the estate of the Decedent or as reportable

lifetime gifts by the Decedent, including, without

limitation receiving copies of statements for bank accounts

with First Hawaiian Bank or other bank with a Hawaii office

held [by] the Decedent during life or at death, and

including, without limitation, obtaining information

necessary to determine whether Hawaii real property held by

others where funds for the purchase and/or maintenance of

same came from the Decedent were held by the others as agent

for the Decedent, or whether the amounts paid by the

Decedent to purchase or maintain Hawaii property held by

others were taxable gifts to the owners of record.

Petitioner alleged that Decedent owned property within the First

Circuit at the time of his death.

Respondents filed an objection to the Petition,

asserting in part that they were not aware of any assets of the

Decedent that would be subject to probate in Hawai#i, and

appearing to challenge Petitioner's allegation that Decedent

owned property within the First Circuit. 

On September 12, 2017, the Probate Court entered an 

Order Granting in Part and Continuing in Part Petition for

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Appointment of Special Administrator. The Court appointed Estate

Administrative Services, LLC, by its principal, Stephen E.

Harris, to serve as special administrator, with powers "to locate

or identify assets located in the State of Hawai[#]i that would

be subject to the [D]ecedent's probate estate, as defined in

[Hawaii Revised Statutes (HRS)] § 560:2-201.2/" 

On December 15, 2017, Petitioner filed an ex parte

petition in the Circuit Court of the First Circuit (Ex Parte

Petition), which initiated a separate, special proceeding to

request issuance of a subpoena duces tecum upon the Custodian of

Records of First Hawaiian Bank (FHB).3/ Petitioner was allegedly

concerned that Respondents were attempting to conceal Hawai#i

assets at FHB which, while not subject to probate in Hawai#i,

would impact the amount of Petitioner's inheritance under Korean

law, and could give rise to potential gift or estate tax

obligations of Decedent.

The Ex Parte Petition was granted and the court

directed issuance of a subpoena duces tecum (Subpoena) on FHB. 

Respondents filed a motion to quash the Subpoena, which was

denied. 

Pursuant to the Subpoena, Petitioner obtained a copy of

a FHB statement for a joint account held by Decedent at the time

of his death. However, the special administrator was unable to

locate any assets of Decedent subject to probate in Hawai#i

(i.e., "probate assets"), which the special administrator

reported to the Probate Court. 

The Probate Court subsequently entered the Order and

Judgment, which discharged the special administrator and ordered

that the fees and costs of the special administrator, and the

attorneys' fees and costs of Respondents and Petitioner, be paid

from the Estate. 

2/ HRS § 560:2-201 (2006) provides that "[i]n this part[,] i.e., HRS

chapter 560, art. II, part 2, "'[p]robate estate' means property that would

pass by intestate succession if the decedent died without a valid will."

3/ The Honorable James H. Ashford presided over the special

proceeding.

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Further, on April 16, 2019, the court entered its

Findings of Fact and Conclusions of Law (FOFs/COLs) regarding

this matter. 

II. Discussion

A. The Probate Court's Jurisdiction

Respondents contend that the Probate Court lacked

jurisdiction over the Estate, because the Decedent was not

domiciled in Hawai#i, and the court — through the special

administrator's investigation and report — determined that

Decedent had no probate assets in Hawai#i. According to

Respondents, "[o]nce the [P]robate [C]ourt determined that there

were no assets subject to probate in Hawai#i, . . . it should

have dismissed the case." Instead, Respondents contend, the

Probate Court, without jurisdiction, erroneously ordered that the

fees and expenses of the special administrator, and the

attorneys' fees of Respondents and Petitioner, be paid from the

Estate. 

HRS chapter 560 codifies Hawaii's version of the

Uniform Probate Code. See HRS § 560:1-101 (2006). HRS §§ 560:1-

301 (2006) and 560:1-302 (2006) set forth the territorial

application of chapter 560 and the subject matter jurisdiction of

the probate court. Under HRS § 560:1-302(a), the probate court

has jurisdiction, "[t]o the full extent permitted by the

Constitution," over "all subject matter relating to[,]" among

other things, "[e]states of decedents . . . ."4/ Under HRS

§ 560:1-301(1) and (2), chapter 560 applies to, among other

things, "[t]he affairs and estates of decedents . . . domiciled

in this State" and "[t]he property of nonresidents located in

this State or property coming into the control of a fiduciary who

is subject to the laws of this State[.]"5/ See Estate of Von

4/ HRS § 560:1-201 (2006) defines "[e]state" as follows: "'Estate'

includes the property of the decedent, trust, or other person whose affairs

are subject to this chapter as originally constituted and as it exists from

time to time during administration."

5/ HRS § 560:1-201 defines "[p]roperty" as follows: "'Property'

includes both real and personal property or any interest therein and means

anything that may be the subject of ownership."

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Baravalle, No. CAAP-16-0000073, 2019 WL 762406, at *1 (Haw. App.

Feb. 12, 2019) (SDO) (ruling in the case of a non-domiciliary

decedent that "Chapter 560 provides for extra-territorial subject

matter jurisdiction of the Probate Court over property coming

into the control of a fiduciary"). Further, HRS § 560:3-614(2)

specifically authorizes the probate court, upon petition from an

interested person and after proper notice and a hearing, to

appoint a special administrator where such an appointment "is

necessary to preserve the estate or to secure its proper

administration . . . ."6/

Here, there is no dispute that Decedent was not

domiciled in Hawai#i. The issue in the first instance is whether

the Probate Court had subject matter jurisdiction over "the

property of [Decedent] located in [Hawai#i]" as the basis for

appointment of the special administrator. Respondents argue that

as to nonresident decedents, the probate court has jurisdiction

over only those assets that the decedent possessed in Hawai#i and

that are subject to probate in Hawai#i, not other assets such as

jointly held bank accounts that are not subject to probate. 

Under Respondents' theory, because the FHB joint account was not

part of the Estate, it could not serve as a basis for the Probate

Court's jurisdiction, and the court lacked jurisdiction to do

anything further than dismiss the case.7/

The plain language of HRS §§ 560:1-301 and 560:1-302

does not support Respondents' theory. The Probate Court's

subject matter jurisdiction extends to "[t]he property of

6/ Accordingly, Hawai#i Probate Rules (HPR) Rule 56 provides that

"[a]n interested person may seek appointment of a special administrator where

necessary to preserve the estate or to secure its proper administration,

including . . . where: (a) the existence of assets to be probated is

uncertain, and an administrator is required to locate or identify assets,

including investigating the merits of pursuing a lawsuit or claim for

relief[.]" (Formatting altered.) The commentary to HPR Rule 56 further states

that "the most common situations giving rise to the appointment of a special

administrator" include "the appointment of a special administrator to track

down assets, since many times financial institutions are reluctant to release

information about a deceased's assets except to a court-appointed official."

7/ Somewhat paradoxically, Respondents also argue that "the probate

court's initial order appointing the special administrator was proper, because

it looked to investigate whether there were assets subject to probate[,]" and

"because '[a] court always has jurisdiction to determine whether it has

subject matter jurisdiction[.]' State v. Alagao, 77 Hawai#i 260, 262, 883

P.2d 682, 684 (App. 1994)." 

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[Decedent] located in this State . . . [.] HRS §§ 560:1-301(2). 

The language of HRS § 560:1-301 and the definition of "property"

under HRS § 560:1-201 do not limit the court's jurisdiction to

only those assets of Decedent that are subject to probate in

Hawai#i. See also HPR Rule 56(a) and (b) (providing for

appointment of a special administrator where (a) "the existence

of assets to be probated is uncertain" and (b) "no probate assets

exist"). Accordingly, the Probate Court had subject matter

jurisdiction to appoint the special administrator "to locate or

identify assets located in the State of Hawai[#]i that would be

subject to the [D]ecedent's probate estate, as defined in HRS

§ 560:2-201."8/

With jurisdiction to appoint the special administrator,

the Probate Court also had subject matter jurisdiction to award,

in appropriate circumstances: (1) the special administrator's

fees and costs from the Estate; see HRS § 560:3-719 (2006)

(providing that "[a] personal representative is entitled to

reasonable compensation for the personal representative's

services"); HRS § 560:1-201 (defining "personal representative"

to include a "special administrator"); HPR Rule 59 ("Unless

otherwise agreed between the special administrator and heirs or

beneficiaries of an estate, the court shall set the compensation

of a special administrator in the manner set forth under HRS

§ 560:3-719."); see also HRS § 560:3-720 (2006) ("If any personal

representative . . . defends or prosecutes any proceeding in good

faith, whether successful or not that person is entitled to

receive from the estate that person's necessary expenses and

disbursements including reasonable attorneys' fees incurred."9/);

and (2) the parties' fees and costs from the Estate; see In re

Estate of Campbell, 46 Haw. 475, 522-23, 382 P.2d 920, 953-54

8/ Respondents' reliance on In re Estate of Marcos, 88 Hawai#i 148,

963 P.2d 1124 (1998), is misplaced. There, the supreme court ruled that

"because the Marcos Estate owned no assets in Hawai#i, there was no basis for

opening a probate proceeding in Hawai#i and no grounds for appointing a

special representative." Id. at 157, 963 P.2d at 1133. Here, the special

administrator was appointed to determine whether Decedent had assets in

Hawai#i that were subject to probate, not in connection with opening probate.

9/ HRS § 560:3-720 has been amended, effective June 29, 2023.

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(1963).10/ Whether such fees and costs were properly charged to

the Estate in the circumstances of this case is discussed below.

B. Award of the Special Administrator's Fees and Costs

Respondents contend that the Probate Court erred in

failing to order that Petitioner pay the special administrator's

fees and costs. Respondents predicate this argument on their

contention that the Probate Court lacked jurisdiction to bind the

Estate after the special administrator concluded there were no

assets subject to probate in Hawai#i. Because we have rejected

Respondents' jurisdictional argument (see supra), we likewise

conclude that Respondents' second contention is without merit.11/

C. Award of Petitioner's Attorneys' Fees

Respondents contend that the Probate Court erred in

ordering that Petitioner's attorneys' fees be paid from the

Estate, even if the court had jurisdiction to do so. Respondents

argue that "[t]here is no authority to shift attorneys' fees in

the special proceeding before Judge Ashford [for issuance of the

Subpoena], and that proceeding — not the probate court proceeding

— is the source of Petitioner's claim that he benefitted the

Estate." Respondents also argue that the FOFs/COLs do not

articulate how the Petitioner's actions benefitted the Estate.

We conclude that the Probate Court's FOFs/COLs, read in

their entirety, provided sufficient support for the award of

attorneys' fees and costs to both Petitioners and Respondents. 

III. Conclusion

For the reasons discussed above, we affirm the Order

Discharging Special Administrator and Awarding Fees and Costs and

10/ We further conclude that FOFs 9-15 and 19 are not clearly

erroneous and COLs 1-11 and 13 are not wrong. 

11/ We also note that in FOF 13, the court found that "[a]ppointment

of a special administrator would benefit Petitioner, Respondents, and

Decedent's Estate by helping to determine the nature and extent of Decedent's

assets located in Hawaii at the time of Decedent's death and the extent of

Decedent's U.S. tax liabilities." (Emphasis added.) Respondents challenge FOF

13 to the extent that it "makes an erroneous decision regarding the probate

court's jurisdiction." As stated above, we conclude that FOF 13 is not

clearly erroneous.

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the Judgment on Order Discharging Special Administrator and

Awarding Fees and Costs, both entered on January 18, 2019, by the

Circuit Court of the First Circuit sitting in probate. Because

this court has properly exercised jurisdiction over this appeal,

Respondents' pending motion to confirm jurisdiction, filed on

May 2, 2019, is dismissed as moot.

DATED: Honolulu, Hawai#i, February 16, 2024.

On the briefs:

Edmund K. Saffery,

Rosemarie S.J. Sam, and

Deirdre Marie-Iha

(Goodsill Anderson Quinn &

Stifel, A Limited Liability

Law Partnership LLP)

for Respondents-Appellants.

Douglas C. Smith and

Ross Uehara-Tilton

(Damon Key Leong Kupchak

Hastert)

for Petitioner-Appellee.

/s/ Katherine G. Leonard

Acting Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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