Probate

1. What is Probate?

Probate is a judicial (court) proceeding to settle a deceased person’s affairs and transfer title to that person’s property to the correct beneficiaries.

2. When is Probate Necessary?

Probate is necessary when there is no other legal means to transfer a deceased person’s property.

In Hawaii, there are several ways that property can pass without the need for probate. These ways include when property is held jointly (with a right of survivorship) and when an account is set up as transferable or payable upon death to a designated beneficiary, or when property is held in trust.

3. Does a Will Avoid Probate?

It is a common misconception that doing a will avoids the need for probate. The opposite is true: A will requires probate to be effective.

Probate may be necessary whether or not someone leaves a will. When someone dies with a will, they are said to have died “testate”. When someone dies without a will, they are said to have died “intestate.” When someone dies intestate, then their property passes according to default rules set by statute.

4. Is Probate Difficult and Expensive?

Probate is not inherently difficult. However, since probate is a public process involving the court system, it is often more difficult and expensive than private methods of transferring property, such as through the use of a trust or payable on death or jointly held accounts.

Some probate cases can be resolved more easily, while some others may take great time and expense and involve great stress. The difficulty and challenges of probate can depend on many factors, including the number and types of property held by a deceased person (for example, residential and commercial real estate, stocks, bonds, retirement accounts, bank and investment accounts, private investments and business), the value of the deceased persons property, whether there are any lawsuits against the deceased person or whether there are large bills and debts, whether a beneficiary or heir challenges a will or brings forth a supposed will of the deceased person, taxes, and questions over property title.

5. What is a Personal Representative?

In order to start a probate proceeding, someone needs to be appointed by the court to take charge and control of a deceased person’s property and to be able to legally speak for the deceased person. The historical (and movie) term for this person is “Executor”. Under Hawaii law, the person is called a “Personal Representative”.

6. How Does Probate Work?

There are several “paths” that probate can take. Two questions must first be answered: (1) did the deceased person leave a will? (2) Should the case be heard by a judge?

For the first question, if someone died with a will, they are said to have died “testate”, meaning with a will, and probate should be opened as a testate probate. If someone died without a will, they are said to have died “intestate”, meaning without a will, and and an intestate probate should be opened.

The second question will usually be resolved upon consideration of any anticipated challenges or difficulties involved in the case. These questions may be related to the validity of a will, the entitlement of a person to be appointed personal representative, or challenges by or disputes among beneficiaries and heirs. If the case is to proceed with a judge’s involvement, the probate is called “formal”. If the case proceeds without judge involvement, the probate is called “informal.”

In combination, there are four ways that a probate may be opened: informal/testate, formal/testate, intestate/informal, intestate formal.