Rules of Probate Procedure
RULES OF PROBATE PROCEDURE
C. Trial Court Rules (TCR)
IV. Rules of Probate Procedure
TABLE OF CONTENTS
IV. RULES OF PROBATE PROCEDURE
These rules are applicable to formal probate procedure provided in 40.0301-40.0333 ASCA, and not to informal (small estate) procedures provided in 40.0334-40.0342 ASCA. They supplement the statutory provisions governing administration of estates. They shall be known as the Rules of Probate Procedure and cited as __________________TCRPr.
Unless otherwise provided herein or by statute, the American Samoa Rules of Civil Procedure are applicable to all formal probate proceedings.
(1) “Executor” means the person named in a will to carry out the directions and requests in that will.
(2) “Administrator” means the person given the authority by the High Court to administer the estate of a deceased person who died interstate.
(3) “Administrator with will annexed” means the person given the authority by the High Court to administer the estate of a deceased person and to carry out the directions of the deceased person’s will when the will has failed to name an executor or the named executor is dead, renounces has appointment, fails to qualify for appointment or has been removed.
(4) “Letters testamentary” means the formal instrument of authority and appointment given to an executor by the High Court empowering him to enter upon the discharge of his office as executor.
(5) “Letters of administration” means the formal instrument of authority and appointment given to an administrator by the High Court empowering him to enter upon the discharge of his office as administrator.
(6) “Interested person” includes heirs, devices, children, spouses, creditors, beneficiaries and any others having a property right in or claim against an estate. It also includes persons having priority for appointment as an executor or administrator and other fiduciaries representing interested persons and anyone who has filed with the High Court a demand for notice.
Formal probate as covered by these rules is commenced with the filing of verified petition for letters testamentary, letters of administration with will annexed or letters of administration.
A petition for letters testamentary must set forth the items listed in 40.0309 ASCA and:
(1) a statement of the interest of the applicant;
(2) the name, the date and place of birth and the domicile at time of death of the decedent;
(3) a statement setting forth any request for exemptions and allowances;
(4) a statement indicating whether applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this Territory or elsewhere, and, as to any such demand, the names and addresses of the demandents;
(5) a statement that the applicant, to the best of his knowledge, believes the will to have been validly executed;
(6) a statement that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will; and
(7) a statement concerning those person, if any, who have a prior or equal right to appointment as executors renouncing their priority or concurring in the nomination of the person seeking appointment.
A petition for letters of administration with will annexed must set forth the items listed in 40.0309 ASCA, (1) through (6) listed in 5 TCRPr above and:
(1) the name and address of the executor, if any, named in the will and the reasons why that person has not been or should not be appointed as executor; and
(2) a statement concerning those persons, if any, who have a prior or equal right to appointment as administrator with will annexed renouncing their priority or concurring in the nomination of the person seeking appointment.
A petition for letters of administration must set forth the items listed in 40.0309 ASCA, (1) through (4) listed in 5 TCRPr above and:
(1) a statement that after the exercise of reasonable diligence the applicant is unaware of any unrevoked testamentary instrument or why any such instrument of which he may be aware is not being probated; and
(2) a statement concerning those persons, if any, who have a prior or equal right to appointment as administrator renouncing their priority or concurring in the nomination of the person seeking appointment.
The petition shall be filed in the Clerk’s Office. The original will must be filed together with the petition in the case of petition for letters testamentary and petition for letters of administration with will annexed. The Clerk of Courts will place the original will in a secure and fire-proof location. In no event will the original will be placed in the case folder.
A formal hearing, at which the estate must be represented by the executor or administrator, must be held on: petitions for letters testamentary, letters of administration with will annexed and letters of administration; contested claims by creditors against the estate; and approval of final accounts. In addition, an executor or administrator may petition the Court, pursuant to a formal hearing, to construe any will or determine heirs, to adjudicate the final settlement and distribution of the estate, to terminate his appointment or to discharge him from further claims. Notice of such hearing must be served on all interested persons in the manner provided in 10 TCRPr below. The hearing date shall be set at the discretion of the High Court, taking into consideration the whereabouts of all interested persons or other contingencies.
(1) The applicant or his attorney shall cause notice to be given of the hearing to all interested persons in the following manner:
(a) by any method which the person entitled to notice acknowledges receipt of a copy thereof at least fourteen days before the time set for the hearing; or
(b) by service by the Marshal of the High Court at least fourteen days before the time set for the hearing, as shown by the Marshal’s certificate of service; and
(c) by publishing at least once a week for three consecutive weeks in a newspaper having general circulation in the territory, the last publication of which is to be at least ten days before the time set for the hearing.
(2) Proof of the giving of notice, including an affidavit of publication, must be made on or before the hearing and filed in the proceeding.
(3) A person, including a guardian ad litem, guardian of the property, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
To prove the valid execution of a will, the capacity of the testator to execute the will and the voluntariness of the execution, one of the attesting witnesses to the will must testify as to those facts at the hearing on the probate of the will. In the event that neither attesting witness is available, an affidavit may be substituted. If both attesting witnesses are dead or unlocatable, the Court may accept whatever extrinsic evidence as to the validity of the will as the Court deems appropriate.
Whenever property not included in the inventory required pursuant to 40.0321 ASCA comes into possession or knowledge of the executor or administrator, he must cause an inventory thereof to be filed within two months after the discovery. The making of such inventory may be enforced by the Court after a motion has been made by any interested person after notice to the executor or administrator by attachment of the property or by removal of the executor by attachment of the property or by removal of the executor or the administrator and the appointment of a new administrator.
The executor or administrator following his appointment shall open a checking account in a local bank as follows: “______________, Executor (Administrator) of the Estate of _________________, Deceased”. In this account shall be placed all capital and income due the estate.
All disbursements to creditors must be based on proven claims in writing. Upon being satisfied of the creditors’ claims, the executor or administrator shall pay the claimed amounts. Contested claims of creditors require a full hearing, as indicated above.
The Court may appoint a qualified and disinterested appraiser for the purpose of ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which appears to the Court to be subject to reasonable doubt. Different persons may be employed to appraise different types of assets included in the estate. The name and address of the appraiser shall be indicated on the appraisal with the items appraised and such must be filed with the Court. The cost of the appraisal shall be borne by the estate.
Upon the filing of a final account by an executor or administrator, the Court in its discretion may appoint a master to approve the final accounts. The master shall be paid such fees as the Court deems reasonable.