When Probate is Necessary

We help our clients avoid probate. However, when a person dies without having done proper estate planning, a probate is often necessary. Probate is a court proceeding. The laws governing probate in Hawaii are Hawaii state laws. There are no federal probate laws. Probate in Hawaii is necessary when a person dies owning any real estate in his or her name alone, no matter how small the value of the real estate. Probate is also required when the total value of all “personal property” owned in his or her name alone is worth more than $100,000. “Personal property” is any asset which is not real estate.

Why The Law Requires Probate

The law requires probate for a good reason. If a person dies, probate makes sure that the property goes to the people who are supposed to inherit it. The probate law requires that a written notice be sent to the persons named in the will and also to the persons who would have inherited if there had been no will. Each one has the right to see the will, see what was owned, and make sure that the assets are divided correctly. In a probate, the court appoints someone (usually a spouse or child, if any) as “personal representative.” In the past this person used to be called the “executor.” The personal representative has the power to gather the assets of the estate, pay bills, and distribute the assets according to the will. If there is no will, the assets are distributed according to the “law of intestacy.” The law of intestacy spells out who inherits assets when there is no will. If there is any problem during the probate, the court can make sure things are done fairly.

How Long It Takes and How Much It Costs

Okura & Associates handles probate cases on all of the Hawaiian Islands. An examination in December 2008 of all probate cases filed in the year 2008 in the 3rd Circuit Court of the State of Hawaii showed that Okura & Associates handled more probate cases in that court than any other law firm in the State of Hawaii. Based on the large number of probate cases handled by our Probate Department, we have some fairly good time and cost estimates. If the estate is simple, consisting perhaps of one parcel of real estate and one or two bank accounts, and if the client assists actively in the case, the probate generally costs between $3,500 and $6,000. Complications will increase the cost. The length of time it takes to finish a probate can generally vary from 7 to 15 months, depending on whether there are complications and on how cooperative the personal representative and beneficiaries are. If a probate has been established in another state or in another country, an expedited proceeding can be used, which generally costs much less than a normal probate, and which can be completed in 2 to 3 months if the personal representative responds promptly to the attorney’s requests.

Probate Options in Hawaii

There are several options for handling the estate when someone dies with assets in Hawaii . The option we would use depends on the facts of your case. Here are the choices.

Affidavit for Collection of Personal Property:

If the person died with $100,000 or less of personal property, with no real estate, no probate is necessary. The assets usually can be collected very quickly and inexpensively by our preparing an affidavit, which is a statement you sign in front of a notary public.

Small Estate:
If the person died owning real estate, no matter how small its value, a probate is required. However, if the total value of the assets is $100,000 or less, the Small Estates Division of the Circuit Court may be willing to handle the case for you. They charge 3% of the value of the assets, plus costs such as court filing fees and newspaper publication fees. (If the Small Estates Division is willing to take your case, check with us. We may be able to match their fee, giving you the advantages of having your own attorney representing you.)

Ordinary Probate:
There are three types of ordinary probates. Any of the three may be used for either a testate or an intestate proceeding.

Informal Probate: An informal probate can be used when the beneficiaries are all cooperative. No court appearances are required. This is the least expensive and fastest kind of probate. Many of the probates we handle are informal.

Formal ProbateThis form of probate is usually used when there is a problem regarding one or more specific issues, or when the Personal Representative wants to limit his or her liability by getting specific instructions and approval of decisions from the judge. One or more court appearances are held for the probate judge to resolve the problems or to direct the Personal Representative. This kind of probate sometimes costs more and takes longer than an informal probate, but also provides a degree of confidence that the Personal Representative’s actions carry the stamp of approval of the court.

Supervised Probate: When there is a major dispute over an estate, a Supervised Probate is necessary. The probate judge supervises the entire case. There may be many court appearances. These are the kinds of probate cases your read about, which may take years and require large legal fees.

Other Special Procedures
For special situations, there are other special procedures, such as Summary Administration and Application for Authorization.