Probate

Probate is the legal process of resolving and closing a person’s business and personal affairs after death.  The person who handles the probate process is called a personal representative.  Probate is often explained as retitling of assets although this is usually a small part of the process.  The personal representative must notify creditors and beneficiaries, distribute assets, resolve or pay any debts and claims against the estate and communicate with the court to verify that the process is done accurately and according to state of Hawaii law. 

Probate can be time-consuming and complicated.  The procedure can take from 6 - 12 months or even longer and many personal representatives hire an attorney to guide them through the legal process.  If the deceased person died with a will, the personal representative must distribute assets according to the instructions in the will.  A will may leave directions for many assets, however, there are also many classes of property that will transfer automatically and outside of the probate process. 

Transfer by Operation of Law

Some assets may be transferred upon death to other people by “operation of law.”  This type of transfer happens automatically and such property does not need go through the probate. 

Jointly Owned Property

The most common type of jointly owned property is a bank account.  Accounts that have been specifically designated with the “right of survivorship” will transfer by operation of law. 

Tenancy by the Entirety

Property owned as a “tenancy by the entirety” will also pass by operation of law without the need to go through probate.  In Hawaii, “tenancy by the entirety” is available to property owned by married couples and also to registered same sex domestic partners.  “Tenancy by the entirety” includes a “right of survivorship” that transfers the property to the other partner upon death. 

Transfer on Death or Payable on Death

Some financial investment accounts and insurance benefits may also be specifically designated to transfer on death or have a “death benefit” with a listed beneficiary. 

Property in a Trust

Property that is already within a trust will also avoid the probate process.  A trust is a powerful estate planning tool and can be used for tax planning, asset protection and also avoiding probate. 

Probate can be a complicated process that involves resolving the business and personal affairs of a person who has died.  The process can be informal or formal depending on the total value of assets and the type of property involved.  Call our office today for a consultation to see how we can help with your probate matters. 

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Wills, Trusts and Estate Planning

Estate planning is important no matter what your age to make sure your goals are carried out after you die.  Proper planning with an attorney can also reduce taxes and help you prepare for important health care decisions in advance. 

Will

A will is a document that states your wishes about what should happen after you die.  The most important decisions are who receives your property and who will take care of your children.  If you do not have a will when you die, the state of Hawaii will make those decisions for you even if they are different than your preferences.  A will can make sure that you make your own decisions for your property and your children. 

It is critical to hire a lawyer to draft your will and other estate planning documents.  Estate planning laws are different in every state and unless your estate planning documents are drafted with special consideration to Hawaii specific laws, your plans for what happens after you die may not be carried out. 

Family arrangements vary widely and you should carefully consider if your situation needs special planning.  A prior divorce, step-children and civil unions will all have impacts on your estate plan.  It is also important to make a will if you want to leave property to friends or distant relatives since they may not otherwise receive anything. 

Trust

A trust can give someone the benefit of your property without actually receiving the property immediately.  You may give your property to a trustee when you die and the trustee will take care of the property while giving the benefit to someone you name.  For example, you may specify that your house should go into a trust, a trustee make important decisions about the house and maintain it while a favorite niece lives in the house.  This is just one scenario and there are many different kinds of trusts to accomplish your desires. 

Tax Planning

Another reason to plan ahead when you die is that your property may be subject to an estate tax.  Both the federal government and Hawaii impose a tax on your estate when you die.  Proper estate planning can reduce or avoid taxes on your estate. 

Living Will and Durable Power of Attorney

An Advance Health Care Directive combines a power of attorney for health care and a living will into one document.  This document allows you to specify who will make your health care decisions if you are not able to make them yourself.  If you have specific instructions for your health care such as what happens when you are in an extended coma or if you want to donate your organs when you die, the Health Care Directive can also state those. 

There are many powerful estate planning techniques available to accomplish your goals for your family and property after you die.  Proper estate planning with an attorney can give you peace of mind knowing that your wishes will be carried out. 

Click here to see the many statutes that govern Hawaii estate planning law.  Hawaii Uniform Probate code

 

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Gideon and the Right to Counsel

Fifty years ago, the U.S. Supreme Court decided the case of Gideon v. Wainwright and directed state courts to provide an attorney to indigent defendants in criminal cases who have been charged with a serious crime and are not able to pay for an attorney. 

In 1961, Clarence Gideon was charged with burglary in Florida.  When it came time for his trial, he asked the judge for a court appointed attorney to represent him because he could not afford to pay for one.  The judge declined to give Gideon an attorney so Gideon represented himself at trial.  He lost and was sentenced to serve five years in prison. 

While serving his prison term, Gideon went to the prison library and wrote an appeal with a pencil on prison stationery to the U.S. Supreme Court challenging the judge’s refusal to grant him court-appointed counsel. 

The U.S. Supreme Court agreed with Gideon and granted him the right to a new trial while represented by a court appointed attorney.  The attorney skillfully uncovered exculpatory evidence and cross-examined the prosecution’s witnesses to expose Gideon’s innocence.  The jury took less than one hour acquit Gideon. 

As a result of the Gideon case, Hawaii and every state in the country now pay for an attorney to represent indigent defendants charged with crimes. If you have been charged with a crime and cannot afford an attorney, ask the judge for a court appointed attorney

Landlord and Tenant Disputes

Landlord and Tenant Law

Purchasing a house on Maui is expensive.  As a result, many people rent the home they live in.  Disputes between landlords and tenants happen frequently and can be frustrating for both parties.  Disagreements can often be settled outside of court.  In other situations, filing a lawsuit is necessary to resolve differences between the parties. 

The Hawaii Residential Landlord-Tenant Code is a useful reference when you have difficulty with your tenant or landlord.  The Code has information relevant to most situations you will encounter and will save you time and money if you read and follow its common sense procedures before you have a dispute.  

Hawaii Residential Landlord Tenant Code

The following are some rough guidelines you should follow to avoid many common landlord/tenant disagreements. 

Avoid Disputes Before They Happen

One method of avoiding disputes is to use a written rental agreement.  Reducing the terms agreed upon to writing will protect both the landlord and tenant and both parties should insist on signing one.  Make sure all important information is recorded in the agreement including when rent is due, the length of lease or rental term and any specific requirements pertaining to a security deposit, pets and smoking.  All important notices and correspondence should be in writing as well. 

Proper Eviction Procedure

In a month-to-month tenancy, 45 days notice is required to evict a tenant.  The end of the notice period should correspond to the end of a normal rental period.  For example, if the rental agreement specifies a month-to-month tenancy you should give notice on the 15th of the month before you want the tenancy to end. 

Nonpayment of Rent

A landlord may demand payment of rent anytime after it is due and may also notify the tenant that if payment is not made within five days, the rental agreement will terminate.  If the tenant does not make full payment of rent, the landlord may sue to evict the tenant and also to recover the unpaid rent. 

If you have a dispute with your tenant or landlord, do not hesitate to assert your legal rights. 

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Invasion of Privacy - Part 2

The public’s endless fascination with the private details of the rich, the famous and the unusual has driven aggressive journalism tactics to extremes that the drafters of our Constitution would never have imagined when they contemplated freedoms of the press. 

Modern photojournalism began in the United States in the 1880’s and it is no coincidence that privacy concerns started almost immediately.  In 1890, two lawyers, Samuel Warren and LouisBrandeis, published a law review article titled “The Right to Privacy” primarily to address concerns about aggressive journalists publishing information that people considered private.  The essay was directed at gossip and society sections of newspapers. 

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."

The article was extremely influential and began the gradual recognition of a new privacy tort but 120 years later the tension between dueling freedoms of the press and individual privacy has never been greater. 

Caselaw, scholarly analysis and legislation have defined the parameters of the now almost universally accepted tort of invasion of privacy and broken it field into four categories:  1) “intrusion of solitude”; 2) “public disclosure of private facts”; 3) “false light” and 4) “appropriation.”  For this series, we will focus on “public disclosure of private facts” which is the main area of this tort applicable to restricting modern paparazzi. 

Hawaiian Privacy History

In 1968, the Hawaii Supreme Court recognized the broad concept of “invasion of privacy” by allowing a lawsuit for the tort of appropriation while hinting that other aspects of the tort may exist.  Also in 1968, the Hawaii constitutional convention debated invasions of privacy and added new language in the Hawaii Constitution.  The intent of the language was not entirely clear, however and the Hawaii Supreme Court only extended the new protections to government intrusions and not those by private citizens. 

In 1978, Hawaii held another constitutional convention and clarified the state’s intent to recognize the tort of invasion of privacy by adding a new provision specifically addressing the issue.  The convention language left no doubt as to its objective when it stated that “[i]n short, this right of privacy includes the right on an individual to tell the world to “mind your own business.”  Since 1978, Hawaiian case law addressing invasion of privacy has consistently confirmed the widely recognized four branches of the “invasion of privacy” tort. 

It is worthwhile at this point to note that invasion of privacy by the government and invasion of privacy by another citizen are two entirely different matters.  Government intrusion is specifically addressed in the Fourth Amendment to the U.S. Constitution and pertains to situations in criminal cases when police are searching for evidence.  The term “reasonable expectation of privacy” was coined in the famous U.S. Supreme Court case of Katz v. United States while discussing a governmental search and seizure. 

Invasion of privacy by a private person who is not acting for the government refers to the common law right to sue and recover damages.  The phrase “reasonable expectation of privacy” has often been borrowed from the criminal context and applied to civil cases because of its ability to concisely articulate an inherent right that we all feel. 

The new privacy legislation introduced by Senator Kalani English this year is a new and fascinating chapter in the invasion of privacy story.  As we continue the privacy series, we will consider the tort of “constructive invasion of privacy” in more detail and its relationship to the current four-part privacy tort.  

 

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Invasion of Privacy - Part 1

The Hawaiian State Legislature recently considered a bill introduced by Senator Kalani English that would recognize the tort of constructive invasion of privacy.  The legislation is titled the “Steven Tyler Act” and has received an extraordinary amount of attention.  The bill borrows statutory language from a similar California law that targets photographers who aggressively follow and track celebrities with the aim of capturing their picture. 

The Hawaiian legislation is called the Steven Tyler Act because the Aerosmith singer pushed for the legislation after paparazzi photographed him from a boat while he was at his own house on Maui in a situation that most people would consider private. 

Maui is a paradise on earth and as a result many of the world’s wealthy and famous spend time here enjoying the sun, ocean and relaxed island attitude.  Local residents have always respected the privacy of visitors and celebrities alike and only recently have paparazzi begun to cause problems. 

The tort of invasion of privacy was originally introduced in 1888 in a treatise by Thomas M. Cooley when he identified a right “to be let alone.”  Two years later Samuel Warren and Louis Brandeis expanded the concept in a landmark law review article that indentified a right to privacy while criticizing aggressive media.  Within a few years, states began to recognize the cause of action and now many courts from jurisdictions around the country have validated privacy suits. 

The state of Hawaii recognized a right to privacy in a series of steps, beginning with the case of Fergerstrom v. Hawaiian Ocean View Estates.  Two Constitutional amendments followed in 1968 and 1978 that further delineated a right to privacy against both the government and individuals. 

The world was irate in 1997 after Princess Diana was killed in a high-speed car chase purportedly attempting to evade paparazzi.  Soon after, California introduced a law designed to create new privacy protections for celebrities.  The state introduced additional laws strengthening its anti-paparazzi stance three subsequent times and to date, has some of the strongest privacy laws in the nation. 

The effect of the newly proposed Hawaiian legislation would be two-fold.  The bill would confirm in statute the right to sue for an invasion of privacy and would also join California’s law at the forefront of privacy legislation by focusing the lens of the tort to address modern technology. 

The field of privacy torts gives us a rare and fascinating study of how new torts are created and adopted.  When the new privacy Hawaiian legislation was introduced, dire predictions erupted forecasting an avalanche of lawsuits.  With a careful look at the history of this tort and its interaction with the First Amendment, we will see why excessive litigation is unlikely to happen and why this area of law is ripe for legislation and clarification.  We will continue exploring this topic and the proposed Hawaiian law in a series of blog posts about the Invasion of Privacy. 

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Car Accidents and Personal Injury Lawsuits

Hawaii is one of about a dozen “modified no-fault” states in the nation that require insurance companies to pay for many of the injuries in a car crash regardless of who was responsible.  No-fault insurance was a trend among states in the 1970’s with the goal of reducing the number of lawsuits and lowering insurance premiums.  In many areas, the no-fault system actually increased insurance premiums and some states are now moving away from the no-fault concept. 

Hawaii requires vehicle owners to carry a minimum amount of insurance.  If you are in an accident on Maui, your insurance company will pay for your injuries up to the limit of your policy which is called the personal insurance protection (PIP) limit. 

Even though insurance will pay for some injuries and damages in an accident, in many situations, Hawaii law allows recovery from the driver at fault.  As a result, Hawaii is a “modified no-fault” state and not a “pure no-fault” state.  You may be able to sue the other driver for non-economic damages such as pain and suffering from your injuries.  You may also be able to sue for serious bodily injury or death. 

Remember, if you are going to file a lawsuit, you must do so within two years of the accident to meet the statute of limitations requirement.  

For more information on no-fault insurance in Hawaii, follow this link.  Hawaii motor vehicle insurance information.

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