by Sheryll Bonilla, esq.
Is there a deadline to probate a will? Yes.
Hawaii Revised Statutes Section 560:3-108(a) sets out a five-year limit.
If the will has not been probated within the five-year deadline, then the probate proceeding is one to determine the heirs who will inherit the decedent’s assets.
Two Exceptions to the Five Years Limit
There are two exceptions. One is for ancillary probate proceedings, which are for persons who lived on the mainland when they died and who own property in Hawaii. H.R.S. § 560:3-108(a).
Since Hawaii has jurisdiction over the land in its state boundaries, if the property is not held by a trust, the decedent’s family has to open an ancillary probate here in Hawaii to obtain a court order authorizing them to distribute the land.
The other exception is if the decedent had a revocable living trust and the will is what is called a “pour-over will.”
This type of will directs that assets not held by the trust be “poured over” into the trust so the property can be given out according to the terms of the trust.
A pour-over will can be probated more than five years after the decedent’s death if its terms direct distribution to the decedent’s revocable living trust. H.R.S. § 560:3-108(4)(B).
So if the Will is Not Probate Within the Five Years Deadline, then What?
In this situation, the family would open a case in probate court to determine who are the heirs who will inherit the property owned by the decedent.
You’ll have to draw the family tree: parents, spouse, children, and grandchildren (who inherit their dead parent’s share).
Without a will, HRS § 560:2-102 tells how much the decedent’s surviving spouse or reciprocal beneficiary (SS/RB) inherits.
If either the decedent has no surviving child or parent, or all the surviving children are also the SS/RB’s children and the SS/RB has no other living child, then the SS/RB receives all the assets.
If the decedent has no descendant but his or her parent is still alive, then the surviving spouse receives the first $400,000 plus 3/4 of any balance of the intestate estate.
If the SS/RB has a child who is not a child of the decedent, then the SS/RB inherits the first $330,000 plus 1/2 of the balance of the intestate estate.
If the decedent has descendants who are not descendants of the SS/RB, then the SS/RB receives the first $220,000 plus ½ of any balance of the intestate estate.
The remainder of the assets are passed to the decedent’s surviving children. If the decedent does not have children but has a living parent, the remainder goes to the living parent and the children of any deceased parent. HRS § 560:2-103.
What about if a mom is pregnant with a baby at the time the decedent died?
As long as the baby lives at least 120 hours (five days) after birth, the baby is considered an heir. HRS § 560:2-104.
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