Helping Families Navigate the Probate Process in Hawaii

Foster Law Offices delivers practical, efficient and cost-conscious legal advocacy to those facing the loss of a loved one. We represent individuals and families in the filing and administration of probate cases on Hawai’i Island.

We concentrate on cases where the death of a loved one was caused by the negligence of a driver in an auto accident; or other negligent or intentional acts results in a claim for money damages against the individual/entity responsible for the loved one’s death.

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What is probate?

The word probate can trigger many different emotions. The process to deal with a deceased loved one’s financial affairs can seem overwhelming on so many levels.

However, the word probate simply refers to the legal process required to transfer assets from a deceased loved one to devisees (when a loved one has a Will) or heirs (when a loved one has no Will). Probate is required under Hawai’i law to settle claims, pay debts and bills, and distribute assets. Probate may not be required if a loved one has transferred assets prior to death to a Trust or other entity created for estate planning purposes.

When is probate required?

In Hawai’i, Probate is required if a deceased loved one owns real estate (of any value); or if the loved one owns personal property (bank accounts, stocks/bonds, etc., but vehicles are not counted) valued over $100,000. If real estate is owned in a Trust or was transferred by the loved one prior to her/his death, Probate may not be required.

If the loved one’s Estate consists of personal property with a value less than $100,000, Hawai’i law provides a process by which a person entitled to inherit the personal property signs/notarizes a document called an “Affidavit for Collection of Personal Property” (click here for the Affidavit –

What happens in a probate case?

Here is a general timeline for a Hawai’i Probate case:

  1. A petition is filed with the Circuit Court.
  2. A personal representative (PR) is approved by the probate Judge. See below for the priority under Hawai’i law for serving as a Personal Representative.
  3. Assets and liabilities are identified.
  4. Creditors are notified.
  5. Claims, such as wrongful death/personal injury cases, are approved by a probate judge.
  6. Assets are sold, if applicable
  7. Creditors, including the IRS and State of Hawai’i (if applicable) will receive payments on any debts and/or taxes owed.
  8. Assets remaining after the payment of debts, including real and personal property, are distributed to devisees (individuals/entities identified in a Will) or an Heir (individual entitled to inherit when decedent dies without a will, or intestate).

Who can serve as Personal Representative?

Hawai’i law provides the persons and priority for serving as a Personal Representative:

§560:3-203 Priority among persons seeking appointment as personal representative. (a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

  1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will;
  2. The surviving spouse or reciprocal beneficiary of the decedent who is a devisee of the decedent;
  3. Other devisees of the decedent;
  4. The surviving spouse or reciprocal beneficiary of the decedent;
  5. Other heirs of the decedent; and
  6. Forty-five days after the death of the decedent, any creditor.

What is a Wrongful Death case and how is a wrongful death/personal injury case handled in Probate?

When a loved one dies due to the negligence of a third party; or when the loved one dies while a personal injury case is pending, the attorneys representing the insurance company/party at fault for the death/injuries may require Probate court approval for any settlement.

Under Hawai’i law, a loved one’s Estate, heirs and other individuals may recover money damages based on the “wrongful death” of the loved one. A wrongful death action may be commenced not later than two (2) years following the date of death. Examples of Wrongful Death cases include: Auto Accidents; Product Liability (Defective Products); Slip/Trip and Fall; Premises Liability; and Intentional Acts such as Homicide.

There are many types of money damages available to family members in a Wrongful Death case. Examples of money damages and persons entitled to pursue a Wrongful Death case can be found in HRS 663-3(b):

(b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:

  1. Loss of society, companionship, comfort, consortium, or protection;
  2. Loss of marital care, attention, advice, or counsel;
  3. Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
  4. Loss of filial care or attention; or
  5. Loss of parental care, training, guidance, or education, suffered as a result of the death of the person;

by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person.

In many cases, insurance companies who agree to settle a Wrongful Death case will require Probate Court approval as a requirement of the settlement. The approval requires first that a Probate case be opened and a Personal Representative be appointed. A petition to approve the settlement to include a description of the case, the terms of the settlement as well as the proposed distribution of the settlement proceeds may be required to be filed with the Probate Court. Interested parties must be provided with notice of the proposed settlement and a hearing must be scheduled with the Probate Court.

At the hearing, the Probate judge will hear arguments in favor of the proposed settlement, (as well as any objections), then will render a decision. In most cases insurance companies will not pay a settlement prior to the Probate Court issuing a decision on the petition to approve the settlement.

For more information about Hawai’i Probate law, Wrongful Death and Personal Injury cases where a loved one has died as a result of an auto accident or other negligent/intentional act, Foster Law offers a free consultation to answer questions and discuss your legal needs.

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Jeffrey E. Foster

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Jeffrey Foster

Attorney Jeffrey Foster proudly represents individuals and business who are looking for representation and strategic legal advice.

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