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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