Hawaii Probate: Homestead allowance, Exempt property, and Family Allowance in Hawaii - A Brief Overview
When a person dies in Hawaii and probate is commenced, there are certain obligations that have priority over others. The "homestead allowance", " exempt property" and " family allowances" are distributions made to a surviving spouse or reciprocal beneficiary (and any minor or dependent children) that generally have a greater priority over any other claims made against the estate. The money allotted to the surviving spouse and any minor/dependent children is not insubstantial and is meant to supplement and help sustain the decedent's surviving spouse and children during the probate administration in Hawaii.
Provided that the estate has a somewhat cooperative and competent personal representative, these allowances should be easy for the surviving spouse and children to get. All that is required is for an eligible person, such as a surviving spouse, to make a claim to the personal representative. The personal representative may then distribute the allowances without prior court order or approval.
Below is a brief explanation of each allowance. For brevity's and simplicity's sake, "surviving spouse" and "reciprocal beneficiary" are interchangeable.
Homestead allowance: In Hawaii, the "homestead allowance" is codified under Hawaii Revised Statutes Section 560:2-402. For the homestead allowance, the surviving spouse is entitled to a sum of $15,000. Again, not a manini amount. If there is no surviving spouse, the $15,000 would be divided equally between each minor and dependent child of the decedent.
Exempt property: Next in line is "exempt property", which is outlined in Hawaii Revised Statutes Section 560:2-403. Under the exempt property statute in Hawaii, the surviving spouse is entitled to take up to $10,000 worth of "household furniture, automobiles, furnishings, appliances, and personal effects." As with the homestead allowance, if there is no surviving spouse, then the decedent's children can jointly take up to $10,000 worth of property. However, exempt property is usually fulfilled last and is subordinate to the homestead and family allowances.
Family allowance: Last, but not least, is the "family allowance", which is detailed under Hawaii Revised Statutes Section 560:2-404. The statute states that the surviving spouse and any minor children who were being supported by the decedent may take a "reasonable allowance" for the spouse's and children's "maintenance" during the probate administration. The Hawaii Probate Rules limits the total amount of family allowance that may be distributed to no more than $18,000 without a court order. Therefore, the family allowance distribution may exceed $18,000, but only upon court approval. This means the person(s) requesting more money will have to petition the court and justify to the judge why the additional funds are needed.
Some additional family allowance tidbits:
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
DISCLAIMER: All content and information is provided by The Law Office of Samuel K.L. Suen, LLLC and is for general informational and discussion purposes only and does not constitute legal advice. Transmission of this information is not intended to create, and receipt does not constitute, a formation of an attorney-client relationship. The information presented at this site is believed to be accurate when made, but may not be complete, is not updated, reviewed or revised on a regular basis. No representations or warranties whatsoever, express or implied, are given as to the accuracy, applicability or validity of the information contained herein. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances. You should not act or rely on this information without consulting with a licensed attorney.
To ensure compliance with requirements imposed by the IRS, please note that any U.S. federal tax advice contained herein is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter that is contained herein.
Copyright © 2018 Law Office of Samuel K.L. Suen, A Limited Liability Law Company. All Rights Reserved.