Someone died in Hawaiʻi.
Do you need probate?

Hawaii's probate tracks:

Note: HRS § 560:3-1201 uses the gross value of the decedent's estate in Hawaii (not net after debts) to determine eligibility. If the gross estate exceeds $100,000 even before subtracting debts, the affidavit is not available. There is no 30-day waiting period in Hawaii's statute — that is the generic Uniform Probate Code rule, but the Hawaii legislature adopted a different condition: the affidavit is available only when no application or petition for the appointment of a personal representative is pending or has been granted in Hawaii. No court filing is required — the affidavit is a sworn statement presented, along with a certified death certificate, directly to each institution (bank, broker, insurer, transfer agent) holding assets. Hawaii's Judiciary publishes sample affidavit form 3CE210 at courts.state.hi.us.

Hawaii estate tax rates (HRS § 236E-8): Unlike Vermont's flat 16%, Hawaii uses a graduated schedule from 10% to 20% on the amount above the $5.49 million exemption. The maximum 20% rate applies to the portion of the estate exceeding the highest bracket. Hawaii Form M-6 is available from the Hawaii Department of Taxation at tax.hawaii.gov/forms.

Portability — Hawaii allows it. If the first spouse to die files a timely Hawaii Form M-6 (even if no tax is due) and makes the portability election, the surviving spouse can add the first spouse's unused Hawaii exemption to their own. This can effectively give the surviving spouse up to $10.98 million in Hawaii exemption — dramatically reducing estate tax exposure at the second death. Unlike Vermont (which has no portability), Hawaii's portability is a powerful planning tool. An estate attorney and CPA should be engaged early to evaluate whether to file Form M-6 even for smaller estates.

Nonresidents owning Hawaii real estate. Hawaii's estate tax applies to Hawaii-situs real property owned by nonresident decedents, apportioned to their total taxable estate. Out-of-state residents who own Hawaii vacation property, investment property, or timeshares need to evaluate Hawaii estate tax exposure. A California or New York resident with a $8 million estate who owns a Maui condo could face Hawaii estate tax on the Maui property's apportion. See tax.hawaii.gov for the Hawaii Department of Taxation.

Hawaii's two recording systems — the most important thing to know first

Hawaii has two parallel systems for recording real property, each with its own process:

Regular System (Bureau of Conveyances). Most Hawaii property. Deeds, mortgages, and encumbrances are recorded with the Bureau of Conveyances. TOD deeds: record the TOD deed with the Bureau of Conveyances before death. At death: the beneficiary records an affidavit confirming the death with the Bureau of Conveyances — straightforward and relatively quick. Regular system property has "tax map key" (TMK) numbers and older-style deed descriptions. Bureau of Conveyances online search: ehawaii.gov/boc/app.

Land Court System (Office of the Assistant Registrar). About one-third of Hawaii real estate — especially in Honolulu — is registered in the Land Court (a Torrens title system). Land Court property has a Certificate of Title number. TOD deeds for Land Court property: record with the Land Court's Office of the Assistant Registrar before death. At death: the beneficiary must file a Petition with the Land Court and wait for the Land Court to issue a new Certificate of Title in the beneficiary's name. This process takes longer than the regular system — typically several months.

For probate estates with real property: the executor's deed (conveying property to heirs or beneficiaries after probate) must also be recorded in the appropriate system — Bureau of Conveyances for regular system property, and a Land Court application for Land Court property.

TOD deed requirements (HRS Chapter 527)

A Hawaii TOD deed must: (1) be in writing; (2) be signed by the owner and notarized; (3) state that the transfer occurs at the owner's death; (4) name specific beneficiaries (not class descriptions like "my children"); and (5) be recorded in the correct recording system (Bureau of Conveyances or Land Court) before the owner's death. The deed has no effect until death and can be revoked at any time. Divorce automatically revokes any TOD deed naming a former spouse as beneficiary (HRS § 560:2-802 by analogy).

Hawaii TOD deed creditor exposure: if the estate's probate assets are insufficient to satisfy creditor claims or statutory allowances, TOD deed beneficiaries may be liable for up to 18 months after the decedent's death. This is longer than Alaska's 12-month window. Title insurance companies typically wait until the 18-month window closes before insuring a sale from TOD deed property.

Leasehold property and TOD deeds. A Hawaii leasehold interest (where only the building/unit is owned and the land is leased) can be covered by a TOD deed just as fee simple property can. The TOD deed names a beneficiary to receive the leasehold interest at death. Note: the new owner takes subject to the remaining lease term and any rent obligations.

Kuleana lands — unique Native Hawaiian intestate escheat rule

Kuleana lands are traditional Native Hawaiian subsistence parcels granted to native tenants under the Great Māhele of 1850 — one of the only instances in Hawaiian history where Native Hawaiians received fee simple title to land. When a kuleana land owner dies intestate and has no takers under normal intestate succession, the kuleana interest does NOT go to the state generally (as all other escheated property would under HRS § 560:2-105). Instead, under HRS § 560:2-105.5, kuleana land goes to the Department of Land and Natural Resources to be held in trust until the Office of Hawaiian Affairs (OHA) develops a management plan for its use.

In practice, kuleana lands typically have many heirs — often dozens of fractional interest holders spread across multiple generations of descendants, many of whom have never had their interests formally probated. This creates the Hawaiian version of the heir property problem: clouded title, difficulty obtaining mortgages or selling, and disputes among numerous fractional co-owners. Organizations working on kuleana land title clearance include the Office of Hawaiian Affairs at oha.org and Hawaii Legal Aid Society at hawaiilegalaid.org.

Reciprocal beneficiary (RB) — Hawaii's unique legal status with inheritance rights

Hawaii created the reciprocal beneficiary status (HRS Chapter 572C) for two adults who cannot or choose not to marry but who are in a committed, mutually supportive relationship. This originally served same-sex couples before marriage equality; it continues to serve couples who choose not to marry (different-sex or same-sex) and certain family members who cohabit in a supportive relationship and are legally prohibited from marrying.

Critically: registered reciprocal beneficiaries have intestate inheritance rights in Hawaii under HRS § 560:2-102, which includes "surviving spouse or reciprocal beneficiary" in the same statutory language. A registered RB inherits the same intestate share as a surviving spouse. Since 2012, RBs can also hold property as tenants by the entirety with full creditor protection and right of survivorship. Registration is through the Hawaii Department of Health Vital Records at health.hawaii.gov/vital-records.

The Hawaii probate system treats references to "spouse" in the intestacy statutes as including registered reciprocal beneficiaries. If your family includes a registered RB, they have legal rights to the estate under both intestate succession and potential elective share provisions. Termination of the reciprocal beneficiary relationship automatically revokes any gifts to the former RB in wills and revocable trusts, similar to divorce. Review estate planning documents if an RB relationship has been terminated.

Leasehold real estate — a Hawaii-specific planning challenge

Many Hawaii properties — particularly in Honolulu neighborhoods like Kailua, Lanikai, Aina Haina, and parts of Honolulu — are leasehold: the buyer owns the building or condominium unit, while the underlying land is leased (often from a Bishop Estate, Kamehameha Schools, or another major landowner). Leasehold interests are real property in Hawaii and are subject to probate just as fee simple property is.

Key differences in estate planning for leasehold property: (1) The leasehold's value depends significantly on remaining lease term — a leasehold with 10 years remaining is worth far less than one with 60 years; (2) Leasehold interests can be covered by a TOD deed; (3) The new owner (whether via TOD deed or probate) takes subject to all lease obligations — rent, maintenance fees, and any lease renegotiation requirements; (4) Some leasehold arrangements restrict who may own the unit or have approval requirements for transfers. Review the lease agreement carefully when inheriting leasehold property.

The elective share — 50% of the marital-property portion of the augmented estate

Under HRS § 560:2-202, a surviving spouse or reciprocal beneficiary of a decedent domiciled in Hawaii may elect to take 50% of the value of the marital-property portion of the augmented estate. Hawaii adopted the redesigned Uniform Probate Code model: rather than a flat fraction of the probate estate, the augmented estate pools the decedent's probate estate, certain non-probate transfers, and the survivor's own assets, then applies a marital-property portion percentage that grows with the length of the marriage or reciprocal-beneficiary relationship.

That sliding scale is set in HRS § 560:2-203: the marital-property portion rises from a small percentage in the first year of marriage up to 100% of the augmented estate after 15 years. A short marriage therefore yields a modest elective share; a long marriage can reach half of essentially everything the couple accumulated. Hawaii also guarantees a floor: the supplemental elective-share amount under HRS § 560:2-202(b) ensures the survivor receives at least $90,000 (raised from $50,000 by Act 158 in 2023) after counting property already passing to them. The election must be made within the deadline in HRS § 560:2-211 (generally within nine months of death, or six months after the will is admitted to probate, whichever is later).

Homestead allowance, exempt property, and family allowance — in addition to the elective share

These three allowances are not charged against the elective share or intestate share — HRS § 560:2-202(c) makes them additive. They also have priority over most creditor claims.

Holographic wills are recognized in Hawaii

Hawaii recognizes holographic wills (HRS § 560:2-502(b)) — entirely handwritten and signed wills that require no witnesses. While recognized, holographic wills often lack important provisions and may face more challenges to probate than formally witnessed wills. A court may require additional evidence of the testator's intent. If the document isn't entirely in the testator's own handwriting, it may not qualify as a valid holographic will. Hawaii courts can also accept a document that doesn't formally satisfy all will requirements as a valid will if there is clear and convincing evidence the decedent intended it as their will — a broader "harmless error" doctrine unique to Hawaii law.

Hawaii's harmless error rule for defective wills

Hawaii has a "harmless error" provision (HRS § 560:2-503) — a court may treat a writing intended as a will as valid even if it doesn't comply with formal execution requirements, if the proponent establishes by clear and convincing evidence that the decedent intended the document as a will. This is a broader doctrine than most states and can validate otherwise defective documents (such as a will signed but witnessed by only one person, or a document with a technical defect). This doesn't mean informally drafted documents will always succeed — but it gives Hawaii courts more flexibility than rigid formal-compliance rules.