A last will and testament is a vital legal document to help your family and loved ones when you die. To make a valid will in Hawaii, you must follow certain requirements under Hawaiian law. We have the answers to your FAQs about making a Hawaii will.
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Frequently Asked Questions
- What If I Die Without a Will in Hawaii?
- Who Can Make a Will in Hawaii?
- Does Hawaii Have a Statutory Will?
- What Types of Wills Does Hawaii Accept?
- Can I Make My Own Will in Hawaii?
- How Do I Make My Will Valid in Hawaii?
- Can I Disinherit My Spouse in Hawaii?
- Can I Disinherit My Children in Hawaii?
- What Estate Planning Documents Should I Have in Hawaii?
What If I Die Without a Will in Hawaii?
Dying without a will, called “intestate,” means a probate court does not know your wishes for managing your estate, distributing your property, and caring for your children. They follow Hawaiian intestacy statutes to determine who inherits your property. Your property first goes to your spouse and children. If you do not have a spouse or children, your property goes to your parents or next of kin, such as siblings, cousins, etc. If the court cannot locate your heirs, your property goes to the state.
What Does a Will Do?
A will gives the probate court instructions on managing and distributing your estate. In your will, you may direct the following:
- Who handles your estate (your personal representative or executor)
- Who receives specific items of personal property and real property (real estate)
- Who gets the balance of your estate (your beneficiaries)
- Who should care for your minor children (your child’s guardian)
- Who should care for your pets
- If you want to make charitable donations
If you do not make these decisions, it is up to the court to decide for you. A will speeds up the probate process, saving time and money. Remember that a will is a public record, so you may not want to share sensitive information or family secrets.
What Doesn’t a Will Do?
You can transfer many assets and property through your will. However, certain types of assets pass outside of your will. For example, bank accounts and life insurance policies. These assets pass to your beneficiaries by transfer-on-death beneficiary designation accounts or named beneficiaries on policies such as the following:
- Bank accounts
- Investment accounts
- Retirement accounts such as IRAs, Keoghs, 401(k)s
- Pensions
- Life insurance and annuities
- Property in a revocable or irrevocable trust
Check all your account and policies to ensure you have the correct beneficiary and backup beneficiary (in case the primary beneficiary dies before you). The proceeds become part of your probate estate if you do not have a beneficiary for these accounts and policies. You may have to provide contact information so the banks and insurers can give them to your beneficiaries.
Who Can Make a Will in Hawaii?
The person making a will, called a “testator,” must have testamentary capacity to make a will in Hawaii, meaning they are of a certain age and have a sound mind.
- Age: A testator must be at least 18 years of age.
- Sound Mind: A testator must have a sound mind. A sound mind means the testator has testamentary capacity, which means they are aware they are making a will, understands what property they own, who their natural beneficiaries are, and knows the effect of them signing a will.
A testator must have testamentary capacity at the time they make and sign the will. Hawaiian residents with concerns about if they are able to make a will should consult with an estate planning attorney.
Does Hawaii Have a Statutory Will?
No. Hawaii does not provide a specific form to make a will. You can hire an attorney or draft one yourself. Many people opt for self-help estate planning solutions to create their will customized to their needs. The advantage is that they can make a new will whenever they have a life change, such as a death in the family, the birth of a child, or divorce. Such life events may prompt you to change your personal representative, beneficiaries, or guardians.
What Types of Wills Does Hawaii Accept?
Only certain types of wills are acceptable in the State of Hawaii probate court. The following are different types of wills and their rules in Hawaii.
- Handwritten Will: A holographic will, is a will the testator writes in their own handwriting and signs without witnesses. Many states do not honor handwritten wills. However, Hawaii allows holographic wills only if the signature and material portions of the document are in the testator’s handwriting.
- Oral Will: Hawaii does not permit oral or spoken wills. All wills must be in writing.
- Electronic Will: An electronic will refers to a method of creating, signing, or witnessing a will using two-way audio-visual technology. Currently, Hawaii does not allow electronic wills.
Even though Hawaii allows handwritten wills, it may be better to have a printed will to reduce misunderstandings.
Can I Make My Own Will in Hawaii?
Yes. Hawaii allows you to make your own will. You can create your will if you know what property you own and who you want to give it to. You do not need an attorney to draft a will in Hawaii and can use online resources. However, if you have significant net worth and need tax planning advice or have a child with special needs and want trust, you may wish to consult a lawyer for legal advice.
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How Do I Make My Will Valid in Hawaii?
Hawaii has the following specific rules for signing and witnessing your will to make it valid:
- Signature: You must sign your will, or if you are unable to sign, you may direct someone else to sign for you in your conscious presence.
- Witnesses: You need two competent witnesses to witness your signing of your will or your acknowledgment of your signature on your will. An interested witness is one who stands to inherit your property by a will or intestacy law. Many states do not allow interested witnesses to attest to a will. However, Hawaii does not have a law against interested witnesses. It may be better to use disinterested witnesses so there can’t be challenges to your will based on undue influence or fraud.
- Notary: You only need a notary for your will if you want to use a self-proving affidavit.
- Self-Proving Affidavit: Hawaii allows you to use optional self-proving language that your witnesses sign when you make your will. They attest in front of a notary that they saw you sign your will, you have testamentary capacity, and it is your voluntary act without constraint for undue influence. The benefit of using a self-proving affidavit is that your witnesses do not have to testify in probate court about your will’s authenticity.
A probate court may not honor your will if you do not follow the state requirements.
Can I Disinherit My Spouse in Hawaii?
No. You can only completely disinherit your spouse if they signed a pre-nuptial agreement waiving their right to an elective share of your property. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will. The surviving spouse may also receive a homestead allowance of $15,000, a family allowance, and an allowance for exempt property.
Can I Disinherit My Children in Hawaii?
Generally, your children do not have a right to inherit from you unless they are minors and there is no surviving spouse. In that case, they may receive a homestead, family, and exempt property allowance. If you want to disinherit a child, you must expressly state you are disinheriting them in your will. If you leave them out of your will, the probate court may consider them an omitted child by mistake and allow them an intestate share.
What Estate Planning Documents Should I Have in Hawaii?
Having a will is an important first step in a complete estate plan. However, there are other documents that help protect you and your family throughout your lifetime.
- Power of Attorney. A power of attorney is a legal document where you appoint someone you trust as your agent to manage your financial affairs. This is a convenient document if you are out of town and a critical one if you are suddenly incapacitated.
- Health Care Directive. A health care directive, also called a living will, allows you to give instructions for your end-of-life care and treatment, including life-prolonging measures. You can also name a health care agent in your health care directive. Your health care agent is responsible for your health care decisions and receives information about your medical condition. Making these decisions in a health care directive is helpful so your loved ones don’t have to make them.
Fortunately, making a valid will and creating other Hawaii estate planning documents is easy with online estate planning templates.
