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What is Probate? Why Might You Want to Avoid It?

Probate is the court process of settling your debts and transferring your property to your beneficiaries. Property that must go through the probate process is all property that you own directly that does not have a legally recognized death beneficiary designation. Probate property can include bank accounts without a pay-on-death designation or not held in joint tenancy, for example, or even tangible personal property such as furniture or jewelry.

Dying With or Without a Will

If you die with or without a will, any property that qualifies as probate property will participate in the probate process. A will is not a probate avoidance mechanism, but has many other advantages over dying without a will, such as allowing you to specify who gets what, nominate a personal guardian for any minor children or incapacitated individuals in your care, and nominate a competent personal representative to wrap up your affairs.

Probate is Public

Probate is a public process. This means that your financial and familial situation could become knowledge to meddlesome members in your community. The size of your probate estate, your will, and any fights for your assets are public record.

Appointment of a Personal Representative

Probate begins by filing a petition for with the court. The court will appoint a personal representative, which is typically the person you nominated in your will if you have one. The personal representative must give notice of his petition for appointment to all interested parties, which may include beneficiaries of the will or heirs at law if there isn't a will. Any of those people may object to the personal representative's nomination, which can cause added delay.

Creditor Claim Period

The personal representative will collect and preserve probate assets in order to pay claims against the estate and to distribute to beneficiaries. Creditors have up to four months after an optional notice is published in a newspaper or sixty days after written notice is delivered, whichever is later, to make claims against the estate. If notice is not published or written notice not delivered, then creditors have up to 18 months to file claims. Some personal representatives prefer to publish notice so that the probate process can end sooner rather than later. However, whether or not the notice is published, probate typically takes closer to a year to end because of the creditor claim period, need to file taxes, and other administrative tasks. Also, if the probate proceedings are contested, then it could take well over a year for the probate process to end. Meanwhile, assets are tied up and not distributed to beneficiaries.

After all creditors are paid, the personal representative distributes assets to beneficiaries. This may include selling property to divide the estate or to supply cash payments. The personal representative then makes a final accounting to the court and if satisfied, the court will discharge the personal representative and close the estate.

Contact Us — An Experienced Honolulu Estate Planning Law Firm

The above description of the probate process is only a general overview. I did not include much of the specifics related to court requirements in order to keep this article brief. The probate process can be cumbersome and complicated. It can also be expensive. The average personal representative may require a host of professional help including an accountant, appraiser, title company, and lawyer. Your personal representative could also seek a reasonable fee for administering your estate. Additionally, there are court fees.

By now you might be wondering whether there is any way for you to avoid the stress, time, publicity, and cost of probate in Hawaii. Yes, there is. Contact us to get started.

This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by contacting our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

DISCLAIMER: All information available at this website are for informational purposes only and is not legal advice. You should contact an attorney directly regarding your specific situation. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between the Law Office of Keoni Souza, LLC and any users or any other party.


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