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Movies and television shows make creating a will seem relatively straightforward. The person making the will writes down their wishes on a piece of paper or records their last will and testament for their family to watch after they are gone.
Jump ahead to these sections:
- Should You Use a Living Trust or a Last Will in Testament in Hawaii?
- What Types of Wills Can You Use in Hawaii?
- What Are the Requirements for a Will to Be Valid in Hawaii?
- How Much Does It Cost to Make a Will in Hawaii?
- Should You Use an Online Will Maker or Estate Planning Attorney in Hawaii?
- Steps for Creating a Will in Hawaii Without a Lawyer
- Steps for Creating a Will in Hawaii With a Lawyer
- How to Make Your Will Legal in Hawaii
- How to Update an Existing Will or Write a Codicil in Hawaii
- How to Revoke a Will in Hawaii
- Frequently Asked Questions: Making a Will in Hawaii
In real life, the making of a will involves a bit more formality. Each state has its own laws regarding wills. This means that what you have seen in the movies and on television is probably not legal where you live.
If you live in Hawaii and have been curious about how to write a will, then this article is for you. Here, we discuss the step-by-step process to make a will in Hawaii.
Should You Use a Living Trust or a Last Will in Testament in Hawaii?
A last will and testament is just one of many tools you can use for your end-of-life planning. Another tool that you can use is a living trust. Whether you should use one or both is entirely up to you and your estate planning goals.
- A last will and testament is a legal document that a person uses to say how they want their property distributed after they die. A person can also use a will to name a personal representative (sometimes called an executor). A personal representative is a person that the testator (the person making the will) names to be in charge of administering their estate after they die.
- A living trust is also a legal document. With a living trust, a person (sometimes called the trustor or grantor) places assets into a trust which are held and managed for the benefit of another person (called the beneficiary).
Probate
One of the main differences between a living trust and a will is probate. Probate is the court-supervised process of administering your estate after you die.
During probate, a personal representative is appointed, your property is identified, your debts are paid, and your property is distributed in accordance with your will or in accordance with the laws of the state of Hawaii if you died without a will.
Probate can impact the timeline for property distribution and the publicity of the property distribution. Depending on the laws of the state and the complexity of the estate, probate can take months and even years to complete.
Conversely, a living trust does not have to go through probate. Upon your death, the property held in trust can automatically be transferred to the named beneficiaries. If you have concerns about probate delays, then a living trust may be a better option.
Probate is a court-supervised process which means that once your will is submitted to probate it is going to become public record. Anything that is public record is accessible and viewable by the public. Conversely, a living trust is not subject to probate and thus remains private.
If you have privacy concerns, then a living trust may be a better option. Of course, a well-drafted will may also alleviate privacy concerns.
Cost
Another important factor to consider when weighing the pros and cons of each option is cost. If finances are a concern, you should compare the costs of setting up and maintaining a trust versus those of executing a will.
You don’t have to choose one over the other. Sometimes people use a living trust as well as a will to accomplish their estate planning goals. Even if a person uses a living trust to dispose of most of their property they may still need a will to dispose of the remainder.
If you have questions about whether you should use a living trust or a last will and testament you should contact an estate planning attorney licensed in Hawaii. An estate planning attorney can answer your questions and help you achieve your estate planning goals.
What Types of Wills Can You Use in Hawaii?
Different states allow you to use different types of wills. In Hawaii, you can use the following types of wills.
- Written will: A written will is a legal document that meets the statutory requirements of a will under Hawaii law. A written will is typically typewritten using either an online will service or an attorney.
- Holographic will: A holographic will is a handwritten will. A holographic will can be used in Hawaii even if it doesn’t meet the requirements of a written will as long as it meets certain statutory requirements discussed in the following section.
- Out-of-state will: An foreign or out-of-state will may be valid in Hawaii if it complies with the statutory requirements of a written will or a holographic will. An out-of-state will may also be valid in Hawaii if “its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.”
- Living will: A living will is not like the other types of wills discussed above because it does not deal with the disposition of property. A living will is used to make your wishes known regarding your health care if you are close to death, unconscious, or otherwise unable to communicate your wishes. In Hawaii, this type of document is called an Advance Health Care Directive Form.
What Are the Requirements for a Will to Be Valid in Hawaii?
In Hawaii, a person must be of sound mind and 18 years of age or older to make a valid will. The other requirements for validity are discussed below.
Requirements for a written will to be valid in Hawaii
In Hawaii, in order for a will to be valid, it must be:
- “In writing;
- Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
- Signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.”
Requirements for a holographic will to be valid in Hawaii
In Hawaii, a written will is valid as a holographic will if “the signature and material portions of the document are in the testator's handwriting.”
Keep in mind that in Hawaii, even if the document or writing doesn’t meet the requirements discussed above it is still treated as if it had been executed in compliance with the requirements “if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute” the deceased’s will.
If you have questions about the validity of a will in Hawaii, consult with an attorney licensed to practice law in Hawaii. The attorney can answer your questions and draft a valid will for you if necessary.
How Much Does It Cost to Make a Will in Hawaii?
The cost to make a will in Hawaii depends on how you make your will. Your options to make a will are to either make the will on your own or hire an attorney.
The cost to make a will in Hawaii on your own
If you decide to make a will on your own, the cost is going to vary depending on whether you draft the will yourself or use an online will maker.
If you make the will on your own, the cost to write or type it yourself is going to include the cost of writing supplies such as pen, paper, ink, etc. The cost also includes your time.
Another option you have if you decide to make a will on your own is an online will maker. There are a number of options when it comes to selecting an online will maker. The cost of using an online will maker can range from free to a few hundred dollars.
The cost to hire an attorney to make a will in Hawaii
If you choose to hire an attorney to make your will, the cost varies depending on how the attorney charges for their services and how much the attorney charges for their services.
Some attorneys charge a flat fee for their services. This is usually done for simple wills. The flat fee can range from a few hundred dollars to a few thousand dollars.
Most attorneys charge by the hour for their services. The cost of making a will when the attorney charges an hourly rate is going to have more variation than the flat fee. This is because the hourly rate varies by attorney. The cost of a will drafted by an attorney with a lower hourly rate is going to be less than a will drafted by an attorney with a higher hourly rate.
When considering an hourly rate you should also keep in mind the amount of time the will is going to take. If you have complex estate planning needs or like to spend a lot of time working with your attorney, then an hourly rate can quickly add up.
It is your responsibility to understand how you are going to be charged for making your will. If you have concerns about cost, it is best to address those concerns early in the process. There are typically affordable options that can meet most estate planning needs.
Should You Use an Online Will Maker or Estate Planning Attorney in Hawaii?
The choice between using an online will maker or an estate planning attorney is completely up to you and your estate planning goals. An online will maker is better for simple estates and an estate planning attorney should be used for more complicated estates.
If you are unsure as to whether your estate is simple or complicated, you can also ask yourself the following questions:
- Are you older than 55 years old?
- Do you have health issues?
- Do you have any minor children?
- Do you have a child or a spouse with special needs?
- Is your estate worth more than a million dollars?
- Do you have any business interests?
If you answer yes to any of the above questions then your estate may be complicated and you should consult with an estate planning attorney. Keep in mind that even if your estate is simple, you can still use an estate planning attorney. Ultimately, the choice is up to you.
Steps for Creating a Will in Hawaii Without a Lawyer
If you decide to create a will without a lawyer, you have a few options for how you create your will. One option is an online will maker. An online will maker is an online program that takes you through the steps of creating a will. Another option is a holographic will. The steps for both options are included below.
Steps for creating an online will in Hawaii without a lawyer
- Think about your will. Before you create your will you should take some time to think about your will. This includes who and what you want to include in your will.
- Gather and confirm information. Prior to writing your will, you may need to gather information. This includes information about the property that you own and the names of anyone you are going to include in your will.
- Select an online will maker. Once you have put some thought into your will, it is time to select an online will maker that can make a valid will in Hawaii.
- Follow the directions of the online will maker. A benefit of using an online will maker is that you don’t need to know how to make a will. To draft your will, follow the directions of the online will maker.
- Print and review the will. Once you have completed the will, print and review the document. Confirm that your will says what you want it to say.
- Execute the will. For a will to be valid, it must be executed. This means that you must sign the will and it must be signed by two witnesses.
Steps for creating a holographic will in Hawaii without a lawyer
The steps for creating a holographic will in Hawaii are similar to the steps for creating a will with an online will maker. You must still think about your will and gather and confirm information. Once you have done that, follow the steps below.
- Handwrite the material portions of the will. In order for your will to be a valid holographic will, you must handwrite the material portions of the will yourself.
- Review the will. After you have finished writing your will, review the document to confirm that the document says what you want it to say.
- Execute the will. A holographic will must be signed in your handwriting.
If you have any questions about creating a will, you should speak with a lawyer. The lawyer can answer your questions and assist you with the will drafting process.
Steps for Creating a Will in Hawaii With a Lawyer
If you decide to create a will in Hawaii with a lawyer, the process includes a number of steps similar to those discussed above. You should still put thought into your will and are going to need to gather and confirm information. In addition to those steps, you are also going to need to do the following steps.
Choose a lawyer
If you are going to create a will with a lawyer, then you need to choose a lawyer. Your lawyer must be licensed to practice law in Hawaii and should have experience drafting wills.
How you choose a lawyer is entirely up to you. Some people ask friends or family for recommendations. Some people use the Hawaii State Bar Association’s Lawyer Referral & Information Service (LRIS).
Meet with your lawyer
Once you choose a lawyer, you should have an initial meeting with the lawyer where you discuss your needs, expectations, and payment. Your lawyer may give you instructions on next steps that you should follow.
Review your will
After you have followed the instructions of your lawyer, your lawyer should draft your will. Take time to review the document. If you have questions about your will, now is the time to ask.
Execute your will
Once you have reviewed your will and confirmed that everything is correct, you need to execute the will. If you hire a lawyer, you are most likely going to execute your will in their office. Executing the will involves signing the will and having two people sign the will as witnesses.
How to Make Your Will Legal in Hawaii
We have already discussed how to make your will legal in Hawaii. A written will must be signed and witnessed. A holographic (handwritten) will does not have to be witnessed but the material portions of the will as well as the signature must be in the testator's handwriting.
How to Update an Existing Will or Write a Codicil in Hawaii
As your life changes, so should your will. One way to update your will with an addition, change, or supplement, is with a codicil. A codicil is a legal document that is executed with the same formalities required for the will itself. If you have been reading along carefully then you already know how to write a codicil. To write a codicil you follow the same steps that you followed to write your original will.
If you have questions about updating an existing will, contact an estate planning attorney. The estate planning attorney can answer your questions and assist you with creating your codicil if necessary.
How to Revoke a Will in Hawaii
In Hawaii, you can revoke all or part of a will by the following methods.
Revocation by writing
In Hawaii, you can revoke a will or any part thereof by executing a “subsequent will that revokes the previous will or part expressly or by inconsistency.”
Revocation by act
In Hawaii, you can also revoke a will by your actions. When you revoke a will by action, you must have the intent and purpose of revoking the will. In Hawaii, you can perform the act or have it done by another person in your conscious presence and at your direction. You can revoke a will by doing any of the following acts to the will or to any part of it:
- Burning
- Tearing
- Canceling
- Obliterating
- Destroying
Revocation by change in circ*mstances
Certain changes in circ*mstances can revoke a will. If your marriage is divorced or annulled, then any portions of your will applying to your former spouse are revoked. Additionally, if a person murders you, then the portions of your will that apply to them are most likely revoked.
Frequently Asked Questions: Making a Will in Hawaii
It is natural to have questions when making a will. Here, we answer frequently asked questions about making a will in Hawaii.
Do you need to notarize a will in Hawaii?
No, you do not need to notarize a will in Hawaii. However, you can make a will self-proved by having it notarized and meeting other requirements. A self-proved will can be admitted for probate without the need for witnesses.
Are holographic wills (handwritten wills) legal in Hawaii?
Yes, as discussed above a holographic will (handwritten will) is legal in Hawaii if it meets certain statutory requirements.
What happens to your will after you die in Hawaii?
What happens to your will after you die in Hawaii depends on what you do with your will while you are alive. Once you have executed your will, you should store it in a safe place and let your personal representative or other trusted friend or family member know about its location. That way when you die, your trusted person can easily locate your will and then file it for probate with the appropriate court.
Start Your Will Today
Now that you know how wills work, it is time to take the first step to writing a will. The first step is deciding how you want to write your will, either with or without an attorney. Once you have made that decision, use this article to help guide you through the next steps. No matter where you are in the end-of-life planning process, Cake is here to help you.
Sources:
- “Hawaii Revised Statutes § 560:2-502 (2021).” Law Justia, Law.justia.com
- “LRIS.” Hawaii State Bar Association, Hsba.org
