The probate process in Hawaii can be onerous, time-consuming and costly. However, if the decedent's estate meets certain conditions, initiating a probate with the courts is sometimes not necessary. Hawaii law, namely Haw. Rev. Stat Section 560:3-1201, allows a decedent's next-of-kin to collect the decedent's property by affidavit. The following are the conditions that must be met for a decedent's property to be marshaled by a Collection by Affidavit:
Furthermore, Haw. Rev. Stat. Section 531-20 mandates that "every banking house, fiduciary company, agent, or trustee" must disclose the nature and kind of property being held when presented with the Collection by Affidavit.
A drawback to the Collection by Affidavit method is that any next-of-kin could potentially sign an affidavit and collect the assets unbeknownst to the decedent's other relatives. Obviously, this could lead to discord and friction between the decedent's relatives. If the decedent desired the property to be given to a certain person(s), then leaving the assets to be collected by affidavit is not recommended. The Collection by Affidavit method is simple, but can also be easily abused.
Banks and other financial institutions usually have their own Collection by Affidavit forms or an attorney can draft an affidavit that could encompass the assets generally. Either way, the Collection by Affidavit can be a cost-effective method to marshal a decedent's assets and a simple alternative to having to file for probate.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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