Basic Requirements for a Last Will and Testament in Hawaii

By: LawInfo

A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.

If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.

A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.

In Hawaii, the laws regarding the valid execution and witnessing of a Will are set forth in the Hawaii Revised Statutes; Title 30A Uniform Probate Code; Chapter 560 Uniform Probate Code; Article 2 Intestate Succession and Wills; Part 5 Wills, Will Contracts, and Custody and Deposit of Wills, Sections 560:2-501 through 560:2-505.

In Hawaii, any person eighteen (18) or more years of age who is of sound mind may make a Will. (See: Section 560:2-501) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.

A Will must be in writing, signed by the testator and by two witnesses. If the testator cannot physically sign his name he may direct another party to do so. This party may not be one of the witnesses. Each witness must sign the Will in the testator’s presence. (See: Section 560:2-502)

In Hawaii, any person who is generally competent may witness a Will. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the Will. However, in Hawaii, the signing of a Will by an interested witness does not invalidate the Will or any provision of it. (See: Section 560:2-505)

If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must swear in an affidavit before a notary to the authenticity of the Will. The affidavit should be part of the Will or attached to it. (See: Section 560:2-504)

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

Living Trust in Hawaii - revocable

The Hawaii living trust is an estate planning tool designed to avoid probate while providing long-term property management. The term "revocable" means that you may revoke or terminate the living trust at any time. A "living" document is a document which you may continually edit and update.

A living trust generally involves three "persons" in its creation and administration: (1) a settlor or grantor who creates the trust; (2) a trustee who administers and manages the trust and its assets; and (3) a beneficiary who receives the benefit of the administered property in the trust.

Executing a Declaration of Trust form establishes your living trust and sets forth its terms and conditions. After transferring assets to your living trust (with you as trustee), you then administer the assets for your own benefit and the beneficiaries, however, beneficiaries get no distributions during your lifetime.

The trustee of a trust makes all of the decisions for the trust and maintains complete control over all property placed in the trust. Control over living trust assets is accomplished by appointing yourself the "trustee". You will also appoint a successor trustee, who, upon your demise, will distribute the property in your living trust as specified, without probate. The role of a successor trustee is to assume the duties of the trustee when a predetermined event such as incapacity, disability or death occurs. In the event of incapacity or disability, other documents such as a living will, health care proxy and power of attorney will be needed. Take the time to review a comprehensive living trust kit. Upon the demise of the trustee, the successor trustee passes revocable living trust property quickly and confidentially to the beneficiaries without probate.

A living trust must contain assets for the benefit of one or more beneficiaries. Placing property in the trust is called "funding the trust". Most valuable assets should be transferred into your living trust but you may fund the trust with as much or as little as you wish. Though there are many types of property that can not be placed in your living trust, you can transfer real estate (including homes), business interests, money market accounts, stocks, bonds, mutual funds, precious metals, gems, antiques, artwork, royalty contracts, patents, copyrights, numismatic as well as other valuable collections and business interests into your trust. See a list of allowed living trust assets.

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