Detailed Answer
In Hawaii, certain real property interests pass outside probate at death, while others require probate of a will. Here’s how you can tell which process applies:
Automatic Transfers by Operation of Law
Joint Tenancy and Tenancy by the Entirety: Property held in joint tenancy (between two or more people) or tenancy by the entirety (between spouses) automatically transfers to the surviving owner(s) at death. You record a death certificate, not probate.
Transfer-on-Death Deeds: Under HRS §502-1 (HRS §502-1), you can record a beneficiary deed naming who inherits real estate. The deed takes effect on death and avoids probate.
When a Will Requires Probate
If the decedent owned real property in their name alone and did not use a will substitute (joint tenancy or TOD deed), the property becomes part of the probate estate. Probate under Hawaii’s Probate Code (Chapter 560) determines heirs and allows the personal representative to transfer title. See HRS Chapter 560.
Even with a valid will, you must open probate to:
- File the will with the probate court in the appropriate circuit.
- Obtain letters testamentary or of administration.
- Settle debts and taxes.
- Distribute the remaining property pursuant to the will.
Probate ensures clear title for buyers, lenders, and future transactions.
Disclaimer: This article provides general information under Hawaii law and is not legal advice. Consult a licensed attorney to address your specific situation.
Helpful Hints
- Review how real property is titled before and after death.
- Consider adding a transfer-on-death deed when updating estate plans.
- Check if joint tenancy or tenancy by the entirety applies to your property.
- File the original will promptly in the correct probate court.
- Retain a licensed attorney to navigate complex probate rules and deadlines.