Writing a Holographic Will in Hawaii

A holographic will is a handwritten document that functions as a valid will and directs where your assets will go when you die. 

A holographic will is valid and legal in Hawaii.  Hawaii Revised Statute 560: 2-502 provides that a will may be valid even it is not witnessed and even if it is not completely in your handwriting.  The holographic will simply needs to have your original signature and the material portions of the document in your handwriting. 

For more information, click on this link to the statute that addresses holographic wills.
HRS 560: 2-502

Even though writing a holographic will is legal does not mean that it is advisable.  There are several reasons why you should not risk distributing your assets with holographic will. 

1.  Your signature may have to proven by extrinsic evidence.  
The probate court is not familiar with your signature or handwriting.  The person who distributes your assets will likely have to go to considerable trouble and expense to prove that your holographic will is actually yours.  Your personal representative may have to compare other documents with your signature or possibly hire a handwriting expert to prove that your signature is valid.  

2.  Nobody will know what you really meant. 
There can be many interpretations of a document and it is easy to challenge a holographic will in court.  Perhaps your handwriting is not clear or you forgot to include an asset in your will.  The probate court will not know if you intended to write your will that way or if you merely made a mistake. 

Even if you believe you are explicit in your will by saying "I leave everything to Dad," the court will not know if you meant your biological father or your distant second cousin who you met once and jokingly referred to as "Dad." 

3.  Your assets will have to go through the probate process.
A will gives instructions as to where your assets should go.  The probate process is the actual distribution of your property.  If you write a holographic will, your assets will likely be probated.  The probate process can be time-consuming and is open to the public.  Anyone who would like to see what assets you had and where they are going is able to do so.  Proper estate planning can circumvent the probate process with a trust. 

4.  Omissions. 
A holographic will may not include all of your assets.  If you do not specifically address the new truck you bought after you wrote your will, the court may not know where it should go.  With property legal advice, you may also forget to appoint a guardian for children, name an executor, provide for pets or name alternative beneficiaries.  A holographic will also typically fails to address end-of-life health care choices and financial decisions. 

A holographic will is not a wise choice for distributing your assets.  There are numerous potential pitfalls when writing a holographic will.  Obtaining competent estate planning advice with an estate planning attorney can save your heirs time and money.  Plan today. 

Advance Health Care Directive or Living Will

A comprehensive estate plan contains several documents.  Each document accomplishes a different goal and every one works with the others to form a cohesive layer of protection for your assets and your intended beneficiaries.  An well-built estate plan applies your assets to their highest and most efficient use. 

In addition to a Trust and a Pourover Will, an Advance Health Care Directive is one of the key documents in your estate plan.

An Advance Health Care Directive appoints a person to make your health care decisions when you are unable to do so.  The person you appoint must be able to accomplish your medical goals pertaining to life support, organ donation and other personal preferences.  Additionally, your appointee must be able to manage your medical affairs to preserve your assets.  If not managed properly, medical bills can rapidly deplete your bank accounts, real estate and personal property.  Your appointee should have the fortitude to make speak with medical professionals, make difficult medical decisions and balance your personal preferences. 

A Living Will is an earlier and more specific version of an Advance Health Care Directive.  The Directive is the preferred and most modern estate plan tool used by most skilled legal practitioners. 

An estate plan must be dynamic and change with your lifestyle and preferences.  Review your plan today, including who will make your medical decisions and evaluate if it reflects your current goals. 

Happy New Year!

The beginning of the new year is an excellent time to review your estate plan and make sure it is current.  Look at your documents and review your will, trust and Advance Health Care Directive carefully.  Ask yourself if the documents accurately reflect your preferred goals for your children and assets? 

If you currently have a trust, be sure that you have properly transferred all the appropriate assets to the trust to take make full use of the tax and probate advantages.  If you do not currently have an Advance Health Care Directive, consider who you would like to make your important health care decisions if you are unable to do so. 

Occasional maintenance on your estate plan can save you and your family time and money. 

IRS Recognizes Same-Sex Marriages

In June, the United States Supreme Court struck down the Defense of Marriage Act.  As a direct result of that decision, the Internal Revenue Service has changed its policy to recognize same-sex marriages. 

Here is a link to a New York Times article detailing the change. 
IRS Recognizes Same-Sex Marriages

Begin Estate Planning Today

One of the first steps to implementing an estate plan is to decide what you would like to do with your assets. If you are unsure of how to divide your estate, begin your research online by reading background information about wills, trusts and other estate planning and tax planning tools.

Dividing your assets is often just one part of estate planning.  Tax considerations and health care issues such as long-term illnesses or incapacity are also important.  If you anticipate that your spouse or an adult child will need specialized care in the near future or after you die, speak to an estate planning attorney about how your assets can help provide care and also about other important documents such as a health care directive.  


Financial planners and accountants often work closely with estate planning attorneys and may be willing to give you a referral to a lawyer who can help. If you need help determining how to plan for the future, call our office today for a free consultation to discuss the options available for your estate.

 This article is a good place to start learning about the basic elements of an estate plan. 

 Money Magazine Estate Planning Article

Estate Planning and James Gandolfini

Estate planning is important for everyone and can save your heirs from losing a significant portion of their inheritance to the U.S. government in the form of taxes.  Here is a link to an interesting article about how much money James Gandolfini's (star of the televisions series Sopranos) heirs could have saved if he had planned properly for his estate.

Estate Planning Lessons From James Gandolfini

How to Make Estate Planning Decisions

Estate planning includes making important decisions for your children, your assets and yourself.  Preparing for the future can save a significant amount of time, expense and worry for your heirs.  Use the following guidelines to help you make two of the most important decisions when planning for your death. 

Guardian

Designating who takes care of your children may be the most important decision you make while estate planning.  Grandparents might seem like a natural choice to be guardians but you should carefully consider their age, financial ability and desire to raise children. 

Your parents may love to visit their grandchildren but do they really want to be full-time parents?  Will they have the time and energy to care for active, young children?  A better choice may be good friends who are about your age, already have children and share similar values.  It is good practice to include alternatives for guardian in your will in the event that someone is unwilling or unable to care for your children. 

Advance Health Care Directive

This document allows you to specify who will make your health care decisions if you are not able to make them yourself.  You may also list certain medical instructions in advance.  It may be tempting to ensure that you are given life-extending treatment such as intravenous fluids, feeing and oxygen for a long period of time to see if you will recover. 

However, you should carefully consider the expense and emotional strain on your loved ones in such a situation.  Life support can be costly and may quickly diminish the estate you want to leave your children and relatives.  No matter what you choose, you can avoid misunderstandings and unnecessary expense if you name a trusted person in your health care power of attorney.  This person should know your true wishes and be able to make objective decisions in a difficult situation. 

The most important decisions during estate planning should be thought out well in advance.  Sometimes the wisest choice to achieve your goals may be also be the simplest one.  In any event, you should contact an attorney to answer your questions and ensure that your decisions are properly recorded in your documents.   

Digital Assets and Estate Planning

In addition to a will and perhaps a trust, proper estate planning includes making an inventory of assets that you own.  When considering your assets, be sure to include your digital estate.  Every year, a larger percentage of our lives and business involve online interaction and most people own digital assets even if they do not realize it.  Email accounts, blogs, websites, social media accounts, online banking accounts and music are just a few of the digital assets you may own. 

One way to manage your online assets is to use a digital afterlife service.  Such services organize your accounts, passwords and online information and are quickly becoming popular as a method of planning for your digital estate. 

Digital giant, Google also recently introduced a feature that allows you to decide in advance what to do with your Google related accounts after you die.  The tool controls many different Google services including Gmail, Google Plus, Blogger, Picassa, YouTube and several others. 

Google Inactive Account Manager

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How to Make a Valid Will in Hawaii

A will is an important document as it can control a considerable amount of money, assets and property and make significant life decisions.  If you make a will, it is essential to make sure there are no questions about its validity.  Specific language and clear wording can prevent disputes after you die and give you peace of mind that your wishes will be carried out as quickly as possible. 

Hawaiian law describes several important requirements to make a valid will.  Hawaii Revised Statute 560 2-502

Proper Age

You must be at least 18 years old to make a legally binding will in Hawaii. 

Hawaii Revised Statute 560 2-501

Witnesses

You must sign your will in front of two witnesses.  In some states, witnesses to a will signing must be “uninterested,” however, in Hawaii, the witnesses may be “interested.”  An “interested” witness is a person who is a beneficiary under the will.  The witnesses do not have to read the document, they must only know that you are signing your will. Hawaii Revised Statute 560 2-505

In Writing

A valid will must be written.  Some people attempt to simplify matters by handwriting their will.  Such a document is called a holographic will and is legal in Hawaii.  A holographic will often makes matters more complex than a printed document drafted by an attorney because the handwriting must be proven to be yours.  Many holographic wills are not witnessed and handwriting experts or people familiar with your handwriting must testify that the writing is yours. 

Print or type your will.  Holographic wills can make probate difficult.  

It is often difficult for a court to determine your true intent from a holographic will.  For example, if you bequest “$10,000 to Auntie Em” the court will not know if you meant your elderly neighbor Emaline who you visit daily or your mother’s sister Aunt Emily who you haven’t seen for years but decides she would like to have $10,000. 

Self-Proving Affidavit

A self-proving affidavit is not a requirement under Hawaii law but wills drafted by a knowledgeable attorney should include one.  This affidavit is a sworn and notarized statement saying that you intend this document to be your will.  If you do not include a self-proving affidavit with your will, your personal representative will have to prove to the court that the will was made by you. 

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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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