What happens when a personal representative cannot find any living heirs or devisees of a decedent? Hawaii Revised Statutes Section 531-33 provides a procedure for the disposition of property in this scenario.
First, the personal representative will need to file a petition to have the estate's final accounts approved. Notice will need to be published in the newspaper for a period of not less than three consecutive weeks. All claimants for a distributive share of the estate then have 90 days from the date of first publication to present a claim to their share of the estate.
If no claims are presented within the 90 days or if a portion of the estate remains unclaimed after this period, then after the court approves the settlement and accounts of the estate, the court or registrar may direct the personal representative to transfer the remainder of the property the State Director of Finance.
The State Director of Finance is then instructed to sell any property, if possible, at public auction. The proceeds are then held pursuant to Hawaii Revised Statutes Chapter 523A, which the unclaimed property law.
According to Hawaii Revised Statutes Section 523A(15), generally speaking, property is presumed to be abandoned five years after the owner had a right to demand the property or after the obligation to pay or distribute the property arises.
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:
Hawaii Revised Statutes Section 572-24 is Hawaii's spousal liability statute and states that a spouse is liable for the debts incurred by the other spouse for all necessaries for themselves, one another or their family during marriage.
The Hawaii Intermediate Court of Appeals affirmed the plain reading of Hawaii Revised Statutes Section 572-24 in Queen's Medical Center v. Kagawa. The ICA stated that "the statute is a legal command that each spouse 'shall be bound to maintain, provide for, and support' the other spouse and 'shall be liable for all debts contracted by one another for necessaries...during marriage'". As a matter of public policy, promoting a definite and clear spousal duty, "best informs husbands and waives of the extent of their obligations...and encourage providers to extend necessaries to needy spouses.
In Kagawa, the husband and wife had separated, but not legally divorced. The husband incurred medical expenses related to a medical emergency and ultimately died. The ICA held that the medical services provided by Queen's Medical Center were necessaries for which he was indebted. Since husband and wife were still legally married at the time the debt was incurred, the wife became responsible for the medical debt upon the husband's passing.
In the context of probate, the surviving spouse is generally not liable for the individual debts of the deceased spouse. However, an exception exists for debts incurred that fall under the category of necessaries. The ICA has made it clear that the medical debt of the deceased spouse is considered a "necessary" and, therefore, is the responsibility of the surviving spouse.
As an aside, the ICA noted that relieving support obligations under Hawaii Revised Statutes Section 572-24 based on the wrongful conduct of a spouse would contradict Hawaii's partnership approach to family law. Therefore, fault or misconduct (such as infidelity) would not eliminate a spouse's obligation of support under Hawaii Revised Statutes Section 572-24.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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