Creating a last will and testament is crucial in planning the distribution of your estate (assets including real and personal property) after your death. Hawaii wills give the testator, the person writing the will, the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Hawaii will.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. A living will, called an “advance health care directive” under Hawaii law, would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, the laws of intestacy will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, the person who will be responsible for carrying out the wishes contained in the will; in the absence of a will, the courts would make the decision for you.
A testator can use a will for various purposes, but the most important is to express how assets such as real estate, business holdings, vehicles, and other personal property, should be divided upon the testator’s death. A Hawaii last will and testament can also allow you to name someone as the legal guardian of your children.
Moreover, in addition to testamentary trusts (trusts that provide a benefit for people), Hawaii law specifically allows for the creation of a trust for the care of animals (“pet trust”) after the settlor’s death. A Hawaii will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will. In Hawaii, first a petition must be filed with the probate court so that a personal representative can be appointed, then that person may proceed to distributing the estate.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In Hawaii in the absence of the will, a surviving spouse inherits the entire estate if the decedent had no descendants or if the decedent had descendants with the surviving spouse. However, the share of the surviving spouse varies depending on whether the decedent or the surviving spouse has descendants from another relationship and also whether the decedent is survived by parents.
If there are no surviving spouse, children, or parents, Hawaii laws of intestacy grant shares of the decedent’s estates to siblings, grandparents, aunts, and uncles; the closer the relative, the higher the priority to inherit.
As you can see, if you would like to have control over the distribution of your assets and avoid the application of intestacy laws, it is crucial that you have a valid Hawaii will.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed through a Hawaii will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. The beneficiary of a life insurance policy may also not be changed through a will.
Also, a surviving spouse is entitled to an elective share of a decedent's augmented estate depending on the length of the marriage.
Form a Last Will in Hawaii
The basic requirements for a Hawaii last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by another person at his direction and in his conscious presence.
- Witnesses: Two witnesses must sign a Hawaii last will and testament in order for it to be valid. The witnesses must sign within a reasonable time after witnessing the testator sign the will, acknowledge the signature, or acknowledge the will itself.
- Writing: Hawaii wills must be written in order to be valid.
- Beneficiaries: A Hawaii will may dispose of property to any beneficiary.
Other Types of Recognized Wills
In addition to written wills, Hawaii recognizes holographic (handwritten) wills so long as the signature and material portions of the document are in the testator’s handwriting. A handwritten will does not have to be witnessed in order to be valid in Hawaii.
Changing a Hawaii Last Will and Testament
A Hawaii last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking a Hawaii Last Will and Testament
A Hawaii will may be revoked at any time in the following ways:
(1) Executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) Performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction.
A “revocatory act” includes “burning, tearing, canceling, obliterating, or destroying the will or any part of it.”
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