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. 

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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