Probate for Small HI EstatesShow Table of Contents
In Hawaii, small estates can avoid full probate via small estate affidavit, court clerk administration, or summary administration.
Small Estate Affidavit
If an Hawaii estate has a gross value <$100,000, you can use the small estate process to settle the estate with no court involvement.
To use the small estate process, the following conditions must be true:
- The probate estate in HI has a gross value <$100K
- No petition has already been made to the court to officially appoint a personal representative
In determining the gross value of the estate, you should value assets as of the date of death, and ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), assets that must be probated in other states (such as real estate located outside of HI), and other standard probate exclusions.
To use the small estate process:
- Prepare a Small Estate Affidavit and have it notarized
- Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- If you are transferring a vehicle, check with your county for local DMV title processes
- If everything goes smoothly, no court involvement will ever be required
Court Clerk Administration
If the estate has a gross value <$100,000, you can instead ask the court clerk to administer the estate, saving you effort and time, but at a cost of 3% of the estate, plus expenses.
You can use this process if the following are true:
- The gross value of the probate estate is <$100,000
- No personal representative has already been appointed
In determining the gross value of the estate, you should value assets as of the date of death, and ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To settle an estate via court clerk administration:
- Submit to the court a Petition for Court Clerk Administration
- Upon approval, the court clerk will handle everything, acting as the personal representative for the estate
- The court will charge the estate 3% of the estate value, plus expenses HI Rev Stat § 560:3-1211
Summary Administration (also known as simplified probate) can also be used for small estates, if you want to retain control and simply want court involvement so that enforcement and protection are a bit more formalized.
You can use summary administration if the estate is worth less than the sum of:
- The value of any homestead allowance, exempt property, and family allowance
- Estate administration expenses
- Reasonable funeral expenses
- Reasonable and necessary medical and hospital expenses of the last illness
In determining the value of the estate, you should value assets as of the date of death, and subtract any secured debts such as liens or mortgages (but ignore unsecured debt such as credit card debt). Do not include any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To settle an estate via summary administration:
- Submit a Petition for Informal Probate to the court (see below)
- Upon approval, the court will issue you Letters of Administration
- Use your "Letters" to collect estate assets, then distribute them according to the requirements list in priority order
- Prepare a Final Accounting of the estate (consider using the EstateExec Accounting Report)
- Prepare and send a copy of a Closing Statement to all unpaid creditors and to all distributees, including the Final Accounting for any distributee whose interest was affected
- Submit the Closing Statement to the court
- If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
A petition for informal probate must:
- State the interest of the petitioner (e.g., named in the will as personal representative, heir, etc.), as well as the name, address, and phone number
- State the name, age, and date of death of the decedent, and the county and state of the decedent's domicile at the time of death
- State the names and addresses of the spouse or reciprocal beneficiary, children, heirs, and devisees and the ages of any who are minors so far as ascertainable with reasonable diligence
- Identify the address of any personal representative of the decedent appointed in HI or elsewhere, whose appointment has not been terminated
- Indicate whether you have received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in HI or elsewhere
- State the time limit for informal probate has not expired because it has been <5 years since the death (there are exceptions allowed)
- State that the original decedent's will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application, and that you believe the will was validly executed, and after the exercise of reasonable diligence are unaware of any instrument revoking the will
- If there is a will, describe the will by date of execution and state the time and place of probate or the pending application or petition for probate; also state the name, address, and priority for your appointment
- If there is no will, state that after the exercise of reasonable diligence, you are unaware of any unrevoked testamentary instrument relating to property having a situs in this State under section 560:1-301, or, a statement why any such instrument of which the applicant may be aware is not being probated; and state your appointment priority and the names of any other persons having a prior or equal right to the appointment under section 560:3-203;
- If the decedent died intestate, state that you diligently searched for and failed to find a will
- List the names, ages, and last-known addresses of the administrators, executors, non-petitioning co-nominees, heirs, legatees and devisees of the decedent
- State the probable value and character of the property of the estate and the legal description of all real property owned by the decedent in Oklahoma (consider attaching an EstateExec Inventory Report)
- State whether an application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction
- A statement of the request, which may include a prayer for the court to admit the will (if any) to probate, to appoint the person requested in the petition as personal representative, to determine the heirs, devisees and legatees of the decedent, to approve the final account, to distribute the property of the estate and to discharge the personal representative
See HI Rev Stat § 560:3-301 for petition requirements.
See HI Rev Stat § 560:3-1203 for summary administration details.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any HI Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
In Hawaii, the local Circuit Court handles wills and estate probate.
See also General Probate.