Hawaii Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: an informal application for probate and appointment, directed to the registrar, or a formal petition for formal testacy and appointment, filed in the Circuit Court (probate division) of the judicial circuit where the decedent was domiciled at death (HRS §560:3-201(a), §560:3-301(a)). Probate of the will and appointment of the personal representative are combined in one filing in either track. No statewide form number is named on this page, so ask the court what it requires; the court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period has run.

3. 3

   A probate proceeding to establish a will and related appointment may not be commenced more than five years after death, with ancillary proceedings excepted; an intestacy appointment may be commenced at any time absent a prior probate proceeding (HRS §560:3-108(a)). On request of an interested person, the custodian of a will must deliver it with reasonable promptness to a person able to secure its probate, or deposit it with a court; no day count is stated (§560:2-516).

4. 4

   Priority to serve: a person with priority under a probated will, including a nominee; then a surviving spouse or reciprocal beneficiary who is a devisee; other devisees; a surviving spouse or reciprocal beneficiary; other heirs; and any creditor 45 days after death (HRS §560:3-203(a)). A person under the age of eighteen, or one the court finds unsuitable in formal proceedings, is not qualified (§560:3-203(f)). This page states no nonresident rule, so ask the court. The court decides who serves and appointment is not guaranteed.

5. 5

   Notice: in the informal track, an applicant who is not a corporate fiduciary, parent, spouse, reciprocal beneficiary or descendant of a parent must mail advance notice to heirs and devisees, and the registrar waits 14 days after the last mailing; within 30 days after informal probate, written information goes to heirs and devisees (HRS §560:3-302(b), §560:3-306). In the formal track the court sets a hearing and the petitioner gives notice to the spouse or reciprocal beneficiary, children, heirs, devisees and named executors, with publication to unknown persons.

6. 6

   Creditors: the applicant or petitioner may publish notice once a week for two successive weeks in a newspaper of general circulation in the judicial circuit, and after appointment the personal representative may mail written notice to known creditors (HRS §560:3-801). Claims are barred unless presented by the later of four months after first publication or sixty days after service of written notice; if no notice is published or served, within eighteen months after death (§560:3-803(a)).

7. 7

   Bond: none is required of a personal representative appointed in informal proceedings, except a special administrator on request, a will that expressly requires bond, or a demand under §560:3-605. In formal proceedings the court may require bond at appointment, and a will that relieves bond controls unless an interested party requests bond and the court finds it desirable (HRS §560:3-603, §560:3-604). Not every estate needs probate: Hawaii has collection by affidavit and clerk administration for small estates, covered on DocDraft's small-estate-affidavit page.

Hawaii Requirements for Petition for Probate

• Informal Application or Formal Petition

  Hawaii has an informal application directed to the registrar and a formal petition for a hearing. Probate of the will and appointment of the personal representative are combined in one filing (HRS §560:3-301(a)).

• Circuit Court Where Decedent Was Domiciled

  Venue for the first informal or formal proceeding is the judicial circuit where the decedent was domiciled at death, in the Circuit Court probate division (HRS §560:3-201(a)).

• Five-Year Limit for Will Proceedings

  No probate proceeding to establish a will and related appointment, other than an ancillary proceeding, may be commenced more than five years after death (HRS §560:3-108(a)).

• Will Custodian Must Deliver the Will

  On request of an interested person, the custodian must deliver the will with reasonable promptness to a person able to secure its probate, or deposit it with a court (HRS §560:2-516).

• Priority to Serve Includes Reciprocal Beneficiaries

  Priority runs from a person with priority under a probated will, including a nominee, to a spouse or reciprocal beneficiary who is a devisee, other devisees, a spouse or reciprocal beneficiary, other heirs, and a creditor 45 days after death. Persons under eighteen, and persons the court finds unsuitable in formal proceedings, are not qualified (HRS §560:3-203).

• Advance Notice in the Informal Track

  Some informal applicants must mail advance notice to heirs and devisees, and the registrar waits 14 days after the last mailing. Within 30 days after probate, written information goes to heirs and devisees (HRS §560:3-302(b), §560:3-306).

• Creditor Notice and Claims Period

  Claims are barred unless presented by the later of four months after first publication or sixty days after service of notice, or within eighteen months after death if no notice is given (HRS §560:3-801, §560:3-803(a)).

• Bond Rules

  No bond is required in informal proceedings except in stated cases. In formal proceedings the court may require bond at appointment, and a will may relieve it (HRS §560:3-603, §560:3-604).

• Petition Contents

  The petition names the petitioner and their interest, the decedent and domicile, the will or intestacy, heirs and devisees, estate value, the proposed personal representative, bond and the relief requested.