Hawaiʻi Probate FAQ

Most people have never dealt with probate before, and it usually comes at the worst possible time. These are the questions we hear most often.

01What is probate, in plain terms?

It is the court process for settling the affairs of someone who has died. The court decides whether there is a valid will and appoints a person to act for the estate. It then oversees gathering the assets, paying debts and taxes, and giving whatever is left to the people entitled to it.

02Does every estate have to go through probate?

No. Whether probate is needed depends on what the person owned and how it was titled. It does not depend on whether they had a will. Assets with a valid beneficiary designation, property held in joint tenancy with a right of survivorship, and property properly transferred into a trust during life generally pass outside probate.

Hawaiʻi also has simpler procedures for smaller estates. They are much faster and cheaper than a full administration. Whether an estate qualifies is one of the first things we look at, because it changes the whole case.

03There is a will. Doesn’t that avoid probate?

This is the most common misunderstanding we see. A will does not avoid probate. A will is the set of instructions the probate court follows. It says who should inherit and who should run the estate. Someone still has to take it to court and be appointed before they have authority to act.

A properly drafted and properly funded trust is the usual way to keep assets out of probate. "Funded" is the key word. If a trust was signed but assets were never transferred into it, those assets are not kept out of probate.

04What happens if there is no will?

The estate is still administered. Hawaiʻi’s intestacy statutes take the place of a will. They set out who inherits and in what shares, in order of family relationship: spouse or reciprocal beneficiary, children, parents, and outward from there.

The law applies a general rule. It does not fit every family, which is why estates without a will are more likely to end up contested.

05What does a personal representative actually do?

They act for the estate. They find and secure assets, get valuations, notify heirs and creditors, review and pay legitimate claims, and file the estate’s tax returns. They also keep records, distribute what remains, and close the estate on the record.

It is a fiduciary role, which means they answer for how they do it. A personal representative who mishandles the estate can be removed and held personally liable for losses. If you have been appointed, learn the duties before you start, not after.

06How long does probate take in Hawaiʻi?

An uncontested probate with simple assets usually takes months rather than years. Much of that time is spent waiting out the creditor claim period, not doing anything in court.

It takes longer if real property has to be sold, assets are hard to value, or heirs are missing or cannot be found. An unclear chain of title, tax problems or a dispute also add time. Once a case is truly contested, the litigation sets the timeline.

07What does probate cost, and who pays for it?

The ordinary costs of administration are generally paid by the estate, not by the person running it. These include court fees, publication, appraisals, accounting and tax preparation, and attorney’s fees for representing the estate.

We will discuss fees with you at the consultation, including whether the estate is likely to qualify for a simpler procedure. Contested cases are quoted separately from administration because they are a different kind of work.

08Do I have to use the attorney who drafted the will?

No. The attorney who drafted the will has no claim on the administration. The personal representative chooses their own lawyer. Also, the attorney who drafted a document is not usually the right person to defend it if someone challenges it.

09Can an estate sell the house before probate is finished?

Often yes, but only after someone has been appointed and has authority to sign. Title companies will want to see the court’s appointment. Depending on how the case is going, the court may also need to approve the sale.

If a buyer is waiting, tell us on the first call. It affects which procedure we use and how fast we need to move.

10The person died on the mainland but owned property on Maui. What now?

Real property is generally handled by the courts of the state where it is located. So land in Hawaiʻi usually needs a Hawaiʻi court case, even if the main probate is happening somewhere else. That case is often narrower than a full probate.

We regularly work alongside out-of-state counsel handling the primary estate, and we appear in courts on every island.

This page is general information about Hawaiʻi probate and is not legal advice about your situation. Deadlines apply and they vary by the type of matter. Call 808-865-2100 or contact us online for a consultation.