Hawaii: Including Right-of-Survivorship Assets in a Probate Inventory

Detailed Answer

In Hawaii, property that passes by right of survivorship generally transfers outside of probate. That means assets owned as joint tenants with right of survivorship, payable-on-death (POD) or transfer-on-death (TOD) accounts, most life insurance policies, and retirement accounts with named beneficiaries typically pass directly to the surviving owner or beneficiary and do not become part of the decedents probate estate. Because these assets are nonprobate, they usually do not have to be listed on the probate inventory for the estate.

However, there are important exceptions and practical reasons to identify and sometimes disclose such assets to the probate court or to the personal representative handling the estate:

• Some courts or local rules require the personal representative to report known nonprobate transfers to help determine what remains in the probate estate for creditor notices or distribution. Check the Hawaii probate rules or local probate clerk instructions. See Hawaii Judiciary probate self-help resources: https://www.courts.state.hi.us/self-help/probate.
• If the joint-title (or beneficiary designation) was established shortly before death or in a way that suggests a gift for the purpose of defeating creditors, a court may set aside the transfer. In such cases, the asset may be treated as part of the probate estate.
• If the personal representative needs to account for all resources used to pay estate expenses or creditors, they may list or explain nonprobate assets even though title passes outside probate.
• If the ownership or beneficiary documents are ambiguous or institutions refuse to transfer funds without a court order, the court may need a clear statement or even a formal inventory to resolve the issue.

Hawaii law governing probate procedures and administration is found in the Hawaii Revised Statutes and the state courts probate rules. For an overview of state probate law and procedures, consult the Hawaii Legislatures statute resources and the judiciary self-help pages: https://www.capitol.hawaii.gov/hrscurrent/ and https://www.courts.state.hi.us/self-help/probate.

Common-sense examples

– Example 1 (typical): A bank account owned as joint tenants with right of survivorship with your mother transfers automatically to your mother when you die. That account generally does not have to be included in the probate inventory because it did not become part of the probate estate.

– Example 2 (problematic): You added your mother as a joint owner on your account a week before you died to avoid probate, but you were trying to place assets out of reach of known creditors. A creditor or the court could challenge the transfer, and the account might be brought into probate.

– Example 3 (administrative): A brokerage account lists your mother as TOD beneficiary. The broker transfers the assets on proof of death to the beneficiary. Usually not in probate, but keep paperwork and inform the personal representative so they can fulfill their duties for the estate.

When you should still disclose survivorship assets

• If you are the personal representative, disclose known nonprobate assets when the court or local probate forms require it.
• If creditors may have claims, provide documentation of nonprobate transfers so the court can determine what is subject to creditor notice and claims.
• If the institution holding the asset demands a probate court order or will not accept beneficiary or survivorship documents without court confirmation.

Practical steps to take

1. Gather title and account documents (deeds, account statements, beneficiary designations, TOD/POD forms).
2. Obtain certified copies of the death certificate for the institution(s) holding the assets.
3. Contact the financial institutions or title holders to confirm whether the asset will transfer outside probate and what documentation they require.
4. Ask the probate clerk or review local probate forms to see whether you must report nonprobate transfers to the court.
5. If there is any dispute or uncertainty, consult an attorney licensed in Hawaii who handles probate and estate matters.

Important: even when survivorship assets pass outside probate, the personal representative still has duties to creditors and to administer the probate estate properly. Failure to disclose assets knowingly in a required inventory or to follow court directions can carry consequences.

Disclaimer

This information is for general education only and is not legal advice. It does not create an attorney-client relationship. For advice specific to your situation, consult a licensed Hawaii attorney.

Helpful Hints

• Dont assume: verify title and beneficiary designations with written documents rather than bank statements or memory.
• Keep originals and certified death certificates available for institutions to review.
• Make a short list of possible nonprobate assets (joint accounts, POD/TOD accounts, insurance, retirement plans) and share it with the personal representative or probate court if asked.
• When in doubt, ask the probate clerk what their local practice is about listing survivorship or beneficiary assets.
• Consider getting quick advice from a probate attorney if significant assets or creditor issues exist.