Hawaii Probate

Twisted treeImportant Points Regarding Hawaii Probate Code. Hawaii adopted a new Probate Code, effective 1/1/97. Our Supreme Court Chief Justice stated:

“…probate will no longer be a time-consuming, cumbersome process that Hawai’i’s citizens dread to the point that they spend hundreds and thousands of dollars creating trusts and rearranging title in order to avoid…”

Here is a summary of some of the important aspects of Hawaii’s Probate Code:

1. There will be no probate if the aggregate value of personal property held in a person’s sole name (plus any vehicles) does not exceed $100,000 in value.

2. A surviving spouse may no longer claim a straight one-third spousal elective share instead of what is stated in a will. The share is now based upon the length of the marriage. For instance, a surviving spouse married to the decedent for 1 to 2 years can claim only 3% of the estate. A surviving spouse married to the decedent for 15 years or more can claim 50% of the estate.

3. The percentage claimed by a spouse is based not only upon the assets in the decedent’s sole name, but upon an “augmented estate” which includes nonprobate transfers to others through such vehicles as revocable trusts, life insurance, and gifts made within 2 years of the decedents death.

4. Attorneys fees and Personal Representative’s fees must be “reasonable” and are no longer set percentages of the gross estate. All fees are subject to court review for reasonableness at the request of an interested party.

5. Procedures are streamlined, eliminating the need for certain notices, hearings, or confirmation of sales of real property by the Personal Representative in most cases. However, any party may require a hearing if one is needed to protect one’s interests.

6. Where the decedent left no will, the rules of intestate succession apply. They are complicated. For example, a surviving spouse receives the entire estate only if the decedent has no surviving parent or children, or if all of the decedent’s living descendants and the surviving spouse’s living descendants are both of their descendants. If a parent survives and the decedent has no living descendants, the spouse takes the first $200,000 plus three-fourths of the estate, and the parent takes the rest.

7. Holographic (handwritten) wills are acceptable in Hawaii, without witnesses. Otherwise, a valid will requires signatures of two witnesses, a date, signature of the testator, and (preferably) notarization for self proving purposes.

8. Although Ancillary Probates remain a viable option, in many cases an out-of-state (domiciliary) Personal Representative may take advantage of the “Acknowledgment of Authority” procedure, which is a summary proceeding whereby the local court acknowledges the authority of the domiciliary Personal Representative and authorizes that Personal Representative to act within the state without formal appointment as an ancillary Personal Representative.