Get Your Assets in Order - Know All About Last Will and Testament Hawaii

A last Will and testament in Hawaii is a legal document that specifies how an individual's assets and property should be distributed after death.

In the Will, you can also specify a guardian to look after your minor children and an executor to manage the distribution of your assets.

The last Will typically takes effect after the person who made it, the "testator," dies.

This article will answer everything you need to know about the last Will.

What's the Difference Between Last Will And Testament and Living Will?

The last Will stands in contrast with the living Will, which takes effect during your lifetime and outlines instructions to be followed by the executor in case you become incapable of making your own healthcare decisions.

It's a good idea to make both Wills.

Is Making a Last Will Legally Necessary?

No. If you don't make a last Will and testament after your death, your real and personal property will be distributed, according to the Hawaii law of intestacy, in the following manner (depending on who you leave behind) -

Your spouse and children with that spouse - Your partner will inherit everything.
Your children but no spouse - Your children will get everything.
Your partner but no children or parents - Your partner will inherit everything.
Your partner and children with that partner, and the spouse has children of another relationship - the spouse inherits $150,000 of your intestate property plus 1/2 of the balance, and your descendants inherit everything else.
Your partner and parents - Your spouse inherits $200,000 of the intestate property plus 3/4 of the balance, and your parents inherit everything else.
Your parents - Your parents will inherit everything.
Only your siblings - Your siblings will get everything.

If you don't want to distribute your asset as per the State's intestacy laws, you have to make the last Will and spell out who will get what and how much.

What Are the Major Requirements for a Last Will And Testament to be Valid?

Age - You should be at least 18 years old.
Sound Mind - You should have a sound mind, also known as having "testamentary capacity ." A person is said to have a sound mind or testamentary capacity if they understand - the nature of the act; the nature and the extent of their property; who their close relatives are; and how they will be affected by the decision.
Signature - You must sign your Will in front of two witnesses. Your witnesses must sign your Will as well. Holographic Wills or handwritten Wills do not have to be witnessed as long as the signature and material portions are in the testator's handwriting.
Written - Your last Will and testament need to be written to be valid. It cannot be on an audio, video, or any other digital file. However, Hawaii may change this law in the future.

Steps to Create a Last Will and Testament in Hawaii

Consider whether you'll work with a lawyer or create your Will using an online service. The benefit of working with an attorney is that they can provide personalized guidance throughout the process.
Make a list of all your assets, including real estate, personal property, investments, bank accounts, and any other assets you own.
Decide who you want to give which of your assets after your death. You can divide your assets between your spouse, children, other family members, friends, or charitable organizations.
Designate an executor. Choose someone you trust to manage the distribution of your assets according to your Will. Be sure to get their consent first.
If you have minor children, consider appointing a guardian to care for them after death.
Write your Will. You can use a Will template or work with an attorney to draft your Will. Be sure to include all necessary provisions, such as instructions for establishing a testamentary trust, pet trust, the distribution of your assets, and the appointment of an executor and guardian for minor children.

Sign your Will. Choose two witnesses who are at least 18 years old and not beneficiaries in your Will. Although an "interested witness" can sign a Will, it's usually not a good idea. These witnesses must be present when you sign your Will and must sign the Will themselves. Someone other than the testator can sign the Will, but they must do it in the testator's conscious presence.
Store your Will safely. Consider a safe deposit box at your local bank and ensure the bank legally authorizes your executor to access it.
Periodically review your Will and make updates to it as needed.

Last Will And Testament Hawaii - Can You Change or Revoke It?

Yes, you can revoke or change your last Will and testament in Hawaii at any time as long as you have the required testamentary capacity.

To revoke your Will, you can either make a new Will that states it revokes the earlier one or that has contradictory terms to the old one. You can also burn, tear, cancel, obliterate or destroy the Will with the intent to revoke it.

If you need to change your last Will and testament, it's best to revoke it and make a new one. However, if you want to make a few minor changes, you can add an amendment to your existing Will – this is called a codicil.

In either case, you will need to finalize your changes with the same formalities you used to make your original last Will and testament.

Probate Process in Hawaii

Probate is the legal process in which a probate court decides if your last Will and Testament is valid. If it is, the court will direct the executor or administrator to carry out the provisions in the document.

If any objections arise regarding the Will, and the beneficiaries and the executor fail to come to an understanding, the court will step in to settle the issue.

If the court declares the Will invalid, the assets in question will fall into intestacy.

Probate Process Overview

Filing the Petition

Your personal representative must file a petition attaching all the necessary legal documents with the probate court.

Appointing a Personal Representative

If you mention an executor in your last Will and testament, the court will appoint that person to manage the estate. If you don't name a personal representative or if the named representative is unable or not willing to serve, the court will appoint an administrator.

The court will provide the representative with Letters of Testamentary, giving them the authority to pay bills, sell assets, and perform other tasks.

Probate Bond

Prior to accepting the Letters and carrying out their duties, the representative will be required to purchase a probate bond (to protect the estate from any adverse consequences of their actions).

Notify the Beneficiaries and Creditors

The personal representative must notify the beneficiaries named in the Will and any creditors of your estate.

Gathering Assets and Paying Dues

The personal representative must gather and inventory your assets, including real property and personal property.

Then, your representative must pay your unsettled debts from the estate's assets, including any taxes owed.

Note: This is why it's important not to die with debts, as it can significantly reduce the remaining assets for your heirs.

Distributing the Remaining Assets

Once your representative pays off your liabilities, they can dispense the remaining assets to the beneficiaries, according to the last Will and testament.

The executor must provide a detailed accounting of how they handled the estate. Once the probate court approves this, the probate process ends.

FAQs on Probate in Hawaii

How Long Does Probate in Hawaii Take?

Ans. Typically, the probate process in Hawaii takes between 6 and 12 months to complete.

However, it can be longer or shorter than that depending on the complexity of the estate, how many beneficiaries the last Will and testament mentions, and any disputes that may arise.

Are All Estates Bound to Go Through the Probate Process in Hawaii?

Ans. The following are examples of some assets typically subject to probate:

The real property you own alone;
Ownership of your portion of assets as tenants in common;
High-value personal property;
Accounts that you have not made transferable or payable on death.

Is there a Way to Avoid Probate in Hawaii?

Ans. You can avoid or shorten the probate process by doing the following -

Establishing a living trust, assigning your assets to it, and naming beneficiaries for those assets.
Designating beneficiaries of your financial assets like investment, bank, and retirement accounts.
Establishing joint ownership for certain assets.

Bottom Line

Nobody knows your assets and your loved ones more than you. So it's fitting that only you decide what should happen to your property and how it will be distributed after your death.

Thus, making a last Will and testament is paramount. Making a Will and clearly outlining your wishes also helps avoid conflict among your loved ones.

So, make a list of your assets, decide on who gets what and if you need help, take the help of a lawyer to make the process easier.

Updated on: December 29, 2022