If you own an interest in Hawaii real estate, and do not hold title it in a trust, as tenants by the entirety, or as joint tenants, when you pass away your real estate interest must be probated. This is common when a property is owned by several siblings (some may have trusts, others do not), and also when foreign investors purchase real estate as they do not have US trusts. This is unfortunate as you now must incur legal fees and court costs, and possibly even a publication to creditors in the newspaper to probate the decedent’s real property interest.
What are Probates of Real property?
I am a Hawaii real estate attorney and handle probates in order to free the property interest so that the property can be sold or transferred. Without the probate, no title insurance company in Hawaii will touch the property, and no commercial lender will make a loan to purchase the property.
Generally, if all the beneficiaries agree upon who will be serving as the personal representative of the decedent (intestate), I can file for an informal proceeding to have a Personal Representative appointed by the Court. A testate proceeding (with a will) can also be done in an informal proceeding. Informal proceedings are a fast and straightforward process to save you time and money. A Personal Representative is generally appointed within in five to 7 business days after the application is filed. The Registrar of the Court will issue Letters, which will allow the Personal Representative to deal not only with the real estate of the estate, but also administer other assets of the estate such as bank accounts and safety deposit boxes.
To facilitate the closing of an estate, a Personal Representative may decide to publish a notice to creditors in the newspaper (once a week for three consecutive weeks). The Personal Representative can convey the property from the estate to the beneficiaries/heir-at-law of the estate, four months after the first date of publication. Note, the creditors’ claim period lasts four months when notice is published and 18 months if no notice is published. The timeline listed above is of course the best-case scenario in which all parties respond in a timely manner. The ultimate goal is to get you in and out of Probate, with minimum costs and delay. Assuming everything goes smoothly and nothing unusual arises this can be done on a fixed legal fee arrangement.
As with the opening of an estate, the closing of an estate can be done in an informal proceeding. The informal closing of an estate is a fairly simple process assuming all parties sign their respective documents acknowledging receipt of their intestate/testate interest in the estate. The closing of an estate in a formal proceeding is a more time-consuming and detailed process and will incur increased legal fees as a court order will needed to be signed by the Judge to close the estate. Estates are closed in a formal proceeding in which a conflict arises between the heirs-at-law or beneficiaries of the estate (i.e. will contests or accounting disputes).
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The information above is but a short overview of the probate process. Keep in mind all probate cases are different and the time and complexity of the opening and closing of each case will vary. If you have any questions, please don’t hesitate to contact me.
