Hawaiʻi Probate FAQ

Probate is unfamiliar to almost everyone who has to do it, and it usually arrives at the worst possible time. These are the questions we are asked most often.

01What is probate, in plain terms?

It is the court process for settling the affairs of someone who has died. The court determines whether there is a valid will, appoints a person to act on behalf of the estate, and supervises the gathering of assets, the payment of debts and taxes, and the distribution of whatever is left to the people entitled to receive it.

02Does every estate have to go through probate?

No. Whether probate is required depends on what the person owned and how it was titled, not 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 provides simplified procedures for smaller estates, which are considerably faster and cheaper than a full administration. Whether an estate qualifies is one of the first things we look at, because it changes the entire shape of the matter.

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

This is the most common misunderstanding we encounter. 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 administer 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 tool for keeping assets out of probate. The word "funded" is doing real work in that sentence: a trust that was signed but never had assets transferred into it does not keep those assets out of probate.

04What happens if there is no will?

The estate is still administered; Hawaiʻi’s intestacy statutes simply supply the distribution scheme instead of a will. They set out who inherits and in what shares, in an order based on family relationship — spouse or reciprocal beneficiary, children, parents, and outward from there.

The result reflects a general rule rather than the particular family, which is why intestate estates are disproportionately likely to end up contested.

05What does a personal representative actually do?

They act for the estate: locating and securing assets, obtaining valuations, notifying heirs and creditors, reviewing and paying legitimate claims, filing the estate’s tax returns, keeping records, distributing what remains, and closing 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, so if you have been appointed, it is worth understanding the duties before you start rather than after.

06How long does probate take in Hawaiʻi?

An uncontested administration with straightforward assets is usually measured in months rather than years, and much of that time is spent waiting out the creditor claim period rather than doing anything in court.

What lengthens it is real property that has to be sold, assets that are difficult to value, missing or unlocatable heirs, an unclear chain of title, tax complications, or a dispute. Once a matter is genuinely contested, the timeline is driven by the litigation and not by the probate.

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

Ordinary costs of administration — court fees, publication, appraisals, accounting and tax preparation, and attorney’s fees for representing the estate — are generally paid by the estate rather than out of the pocket of the person administering it.

We will discuss fees with you directly at the consultation, including whether the estate is likely to qualify for a simplified procedure. Contested matters 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 drafting attorney has no claim on the administration, and the personal representative chooses their own counsel. It is also worth noting that the attorney who drafted a document is not usually the right person to defend it if its validity is challenged.

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

Often yes, but not before someone has been appointed and has authority to sign. Title companies will want to see the court’s appointment, and depending on how the matter is proceeding, court approval of the sale may be required as well.

If there is a buyer waiting, tell us at the first call. It affects which procedural route we take and how quickly we need to move.

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

Real property is generally dealt with by the courts of the state where it sits, so Hawaiʻi land usually requires a Hawaiʻi proceeding even where the main administration is happening elsewhere. That proceeding 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.