Hawaii Probate and Probate Administration Honolulu Probate Lawyer
Probate is a court-supervised process by which a decedent’s estate is administered and ultimately distributed to the decedent's heirs or devisees. Probate also ensures that creditors’ rights are protected and the decedent’s outstanding debts, expenses, taxes and other obligations are settled. In Hawaii, the probate process is governed by Section 560, Article III of the Hawaii Revised Statutes.
Generally speaking, the Hawaii probate process had six basic steps:
1. Notifying interested parties: Devisees under a Last Will and Testament, the decedent’s natural heirs under intestate succession laws and creditors are interested parties who are entitled to be notified and kept apprised of the ongoing estate administration.
2. Appointing an executor (a.k.a. personal representative): A personal representative/executor needs to be appointed to oversee the estate’s administration, which includes marshaling, liquidating and distributing assets.
3. Inventorying assets: The decedent’s assets need to be collected, inventoried and appraised for their value as of the decedent's date of death. This also includes unpaid wages and rental income, interest, dividends, etc.
4. Paying claims: If notice is published, unknown creditors have a four month period from the date of publication in which to file a claim. If notice is not published, unknown creditors have 18 months from date of death in which to file their claim. If creditors fail to do so within that time frame, their claims are generally barred.
5. Filing tax returns: The decedent’s final federal and state income taxes, estate’s income taxes, estate taxes and gift taxes need to be calculated and returns filed. Remember that while joint assets pass outside of probate, they may still be included in the estate for tax purposes and to determine liability for claims.
6. Distributing residuary estate: After the estate has fulfill all debt and tax obligations, the executor can distribute the remaining assets to the beneficiaries and close the estate.
A benefit of the probate process is that it provides standardized procedures and court oversight, but it is also a public process, which may make some people uncomfortable. Still, the general public is usually not interested in sifting through court records to learn about a person’s estate and testamentary wishes. Depending on various factors (e.g. nature of the assets, number of heirs/beneficiaries, size and complexity of the estate), the probate process can be time-consuming and expensive.
However, if a person's estate has no more than $100,000 in assets (only personal property such as clothes, bank accounts, stocks, etc.) that does not include any real property interests, the decedent's property may be marshaled without opening a probate proceeding via Collection by Affidavit.
Duties of a Personal Representative in Hawaii. In Hawaii, a personal representative is considered a fiduciary and is expected to exercise the same standard of care as a trustee of a Trust. The personal representative also has a duty to administer the estate expeditiously and in accordance with the decedent's Will. Within 30 days of being appointed, a personal representative must inform the heirs and devisees of the personal representative's appointment. The personal representative also has the right to take possession and control of the decedent's property to the extent it is necessary for the administration of the estate.
Our Billing Practices for Probate matters. For some, a firm's billing methods are a source of anxiety and trepidation. At the Law Office of Samuel K.L. Suen, LLLC, we believe in simplicity and transparency when it comes to billing and we take time to explain to our clients the fees and costs involved. Our invoices clearly detail and describe all completed tasks and the time taken to accomplish them. For probate matters, we use an hourly rate and bill in increments of 6 minutes (or 0.1 of an hour). We will request an initial refundable retainer from which fees and costs will be billed against. If there are any funds remaining at the conclusion of the matter, they will be returned to the client. If the retainer is depleted beforehand, we will send monthly invoices to the client with payment due 30 days thereafter. Generally speaking, the fees and costs associated with a probate matter are payable from the estate.
How we can help. At the Law Office of Samuel K.L. Suen, LLLC, we will work closely with the estate representative to find the most efficient, cost-effective path to administer your loved one’s estate. Also, if you have already been appointed as personal representative of an estate, our firm can help you navigate the probate process and meet your fiduciary duties and responsibilities. Administering an estate usually involves inventorying and marshaling assets, preparing accountings and settling outstanding claims.
If you are interested in having our firm assist you with your probate matter, please download and complete the probate questionnaire that is to the right.
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