The term “probate” may sound intimidating, but it doesn’t have to be. Probate is simply the term for the legal procedure your estate goes through after you pass away. During probate, the court will authenticate your will and authorize your executor – or the person you name to carry out your wishes after you pass – to pay all debts and taxes, as well as distribute your remaining property accordingly.
Oftentimes, life and other commitments get in the way of executing probate, and a lengthy probate process isn’t ideal. This might leave you wondering: can I skip the probate process and settle the estate myself? And what happens if I don’t probate my will? For answers to these questions and more, keep reading!
Types of Probate in Hawaii
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In Hawaii, there are three probate options for handling the estate of someone who has died with assets.
Informal Probate
Informal probate may be used when all of the named beneficiaries are cooperative. This type of probate doesn’t require any court appearances and is typically the fastest probate. Informal probate is also the most common probate in Hawaii.
Unsupervised Formal Probate
Unsupervised formal probate is used when there are one or more specific issues or when the named personal representative wants to limit their liability by having a judge handle approval of decisions and provide instruction.
Supervised Formal Probate
Supervised formal probate is used when there are any major disputes over an estate. A probate judge supervises the case and required court appearances. This type of probate takes longer, sometimes years.
How Does Probate Work in Hawaii?
Once you understand the probate types, you should next learn about the probate process and what happens when someone with a will dies. Probate will begin when a court petition is filed, typically by the executor, to open the case. Once the petition is filed, the court will accept the will and then officially appoint the estate’s executor, as named in the will.
Hearings for probate will give all parties with interest in the estate an opportunity to contest both the appointment of the executor and the will itself. Creditors will then be notified of the death and are given a time frame to make a claim against the estate to recover debts. An inventory of property, such as homes, cars, and bank accounts, will be appraised. After debts are paid and tax returns are filed, the executor petitions the court to distribute all remaining assets as defined by the will.
What Can Happen If Probate Isn’t Filed?
Most of the time, the personal executor of a will cannot be prosecuted criminally if a probate case is not filed; however, the exception to this would be if the executor conceals a will for their benefit or financial gain – in which case, they can be prosecuted. Although a will’s executor typically cannot be prosecuted for failing to file probate, they will often times run into other issues that stem from not filing probate, such as civil lawsuits.
If you don’t file for probate of a will, one of the most common issues you’ll face is that titled assets will be in limbo until the estate is probated. When someone passes away, titled property, such as vehicles and real estate, must be transferred to the beneficiary of said assets. To do this, you must file the proper documentation in order to transfer the titles and verify the will. If you don’t file probate, the transfer of titles can’t be completed. Therefore, the transfer will not occur.
Another potential consequence of not filing probate is that any heirs could file legal claims against the executor. If an estate has assets that are to be distributed to beneficiaries, these people can file lawsuits against the executor to receive their property. They can also claim any damage to the property that occurred in the meantime and lost assets that happened because they weren’t transferred in a timely manner.
It’s not uncommon for someone to have unpaid debts when they pass away. If this happens, the creditor has a right to file a claim against the estate to seek repayment. If probate is filed, creditors usually have approximately four months to file their claims. If probate isn’t filed, that time is extended up to 12 months.
When Is Probate Required in Hawaii?
While probate is highly recommended to ensure that debts are paid, liabilities are liquidated, and assets are appropriately distributed, certain situations don’t necessarily require probate. In Hawaii, probate is only required under two circumstances:
- if the deceased owned any real estate in his or her name alone, no matter how small the value OR
- if the total value of the deceased’s personal property exceeds $100,000
In the case that a property is owned jointly and the co-owner is still alive, the property will transfer to the co-owner without going through the probate process.
In the case that the deceased’s estate is valued at $100,000 or less, you can either go through a simplified probate procedure known as “a summary probate” or you can use an Affidavit, which would allow you to transfer assets directly to beneficiaries and inheritors.
How Can I Avoid Probate in Hawaii?
If you are the sole owner of real estate or your assets exceed $100,000, don’t worry just yet – there are still options! By putting your assets in a revocable living trust – or a trust you create while you’re alive – your beneficiaries can avoid the potential court costs, lawyer fees, and time spent in probate. A revocable living trust allows a person to place their assets in a trust where a designated person, called a trustee, manages the assets and distributes them after the person’s death.
Contact the Probate Experts at 3D Wealth Advisors
Probate can be a lengthy process and may be unavoidable. Thankfully, Hawaii uses the Uniform Probate Code to simplify and streamline things as much as possible. However, if you’re still having trouble navigating the waters, it can be incredibly helpful to have someone on your side that understands the process and has your best interest in mind. If you’re unsure whether or not probate is required for your situation, or you just need some further guidance, reach out to the experts at Hawaii Partners 3D Wealth Advisors.
Our team of dedicated advisors can help guide you through the process of probating a will, as well as a variety of other financial scenarios, with the guidance and attention that you deserve. Our team has a deep-seated passion for helping area residents organize assets and wealth. You can contact us online or by phone at 808-791-1444. We look forward to guiding you through probate!