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. 

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Assault

Assault is a common crime and arises when a person injures someone else.  The level of crime is based on how serious the injury is and may also depend on whether the injury was caused with a dangerous instrument. 

It is important to note that a dangerous instrument does not have to be inherently dangerous and can be merely an object that is used in a dangerous way and has the potential to inflict serious bodily harm.  A vehicle, a rock or even a champagne bottle in a bar fight can be dangerous instruments if they are used to hurt someone. 

First Degree Assault

This level of assault is the most serious and is charged as a Class B felony.  A person commits assault 1° by intentionally or knowingly causing serious bodily injury to another person. 

First Degree Assault Statute

Second Degree Assault

You might be charged with assault 2° if you intentionally or recklessly cause substantial bodily injury to someone else or if you cause any bodily injury with a dangerous instrument.  Assault 2° is charged as a Class C felony. 

Second Degree Assault Statute

Third Degree Assault

Assault 3° is a misdemeanor.  There are several circumstances when this crime might be charged.  Assault 3° typically arises when you intentionally cause bodily injury to someone else or if you hurt another person by doing something a reasonable person would not have done with a dangerous instrument. 

If this level of assault occurs in a fight where both people are fighting willingly, it is charged as a petty misdemeanor. 

Third Degree Assault Statute

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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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