Hawaii Wills vs. Trusts
Estate planning in Hawaii can be straightforward with the right approach. For Hawaii residents weighing the benefits of wills versus trusts, recognizing their distinct advantages and limitations is crucial for minimizing family complications, reducing costs, and avoiding unnecessary delays. This detailed overview examines Hawaii’s specific estate planning regulations and provides guidance to help ensure your assets are distributed according to your intentions.
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Hawaii Will Requirements
An Hawaii Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator or by another person at the testator’s direction while in the testator’s conscious presence
- Witnesses: Must be signed by at least two witnesses who observed either the testator signing or acknowledging the signature
- Interested Witnesses: Will is not invalid if attested by a witness with a beneficial interest in the will
In Hawaii, a written document that does not formally satisfy all requirements for a Hawaii will may nonetheless be treated as a valid will if a proponent of the document can establish by clear and convincing evidence that the deceased person intended for the document to be treated as the decedent’s will (or as a revocation, alteration, or revival of an existing will).
Self-Proved Wills
Hawaii does not require notarization of wills. However, a Hawaii will can be made “self-proved” through execution of a compliant affidavit by the testator and witnesses. A self-proved affidavit attests that:
- The testator signed the document willingly and voluntarily
- The testator intended the document to be a will
- The testator had adequate capacity and was not under constraint or undue influence
Witness testimony is unnecessary for admission of a will in probate if the will is accompanied by a self-proved affidavit. The Hawaii Legislature publishes a model self-proved affidavit within Haw. Rev. Stat. §560:2-504.
Incorporation by Reference
Hawaii law allows a testator to incorporate within a will by reference other written documents in existence when the will is executed. The will must clearly express the intent to incorporate the other document, and the incorporated document must be sufficiently described in the will to allow identification.
Memorandum of Personal Property
Hawaii explicitly recognizes a testator’s right to incorporate by reference a written statement or list—often called a memorandum of personal property—making dispositions of specific items of tangible personal property. This list:
- Must be referenced in the will
- Must identify items and beneficiaries with reasonable certainty
- Must be signed by the testator
- Can be prepared before or after the will’s execution
- Can be altered by the testator after its creation
Important Limitation
A testator cannot distribute real estate or money using a memorandum of personal property.
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Amendment, Revision, and Revocation of Hawaii Wills
Amending a Hawaii Will
Amendment of a Hawaii will can be accomplished through:
- A codicil (a later-executed addendum to an existing will)
- Execution of a new will that includes the desired amendments
In either case, the new will or codicil must satisfy all formalities required for a Hawaii will.
Revoking a Hawaii Will
A Hawaii will can be revoked if the testator—or another person at the testator’s request in the testator’s presence—performs a “revocatory act” with the intent to revoke the will. Revocatory acts include:
- Burning the will
- Tearing the will
- Cancelling the will
A Hawaii will be can also be revoked through execution of a later will that revokes the prior will either expressly or by inconsistency:
- Express revocation: The later will clearly states the testator’s intention to revoke the earlier will
- Revocation by inconsistency: The later will disposes of substantially all of the testator’s estate
A later will that does not completely dispose of the testator’s estate is presumed to have been intended as a supplement to the earlier will—with the later-executed will controlling in the event of any conflicting provisions.
Automatic Revocation by Divorce
If, after executing a will, a Hawaii testator is divorced:
- Any provisions in favor of the former spouse are deemed to have been revoked unless the will, a court order, or a property settlement agreement between the former spouses expressly states otherwise
This rule regarding revocation due to divorce also applies to:
- Revocable trusts
- Insurance and annuity policies
- Comparable beneficiary designations in favor of a former spouse
Marriage After Will Execution
If a Hawaii testator marries after execution of a will:
- The surviving spouse inherits the same share of the estate he or she would have inherited had the testator died intestate
- This share is adjusted for any distributions to children of the testator born before the marriage and who are not children of the surviving spouse
- This provision is inapplicable if the will was made in contemplation of the marriage, the testator intended the will to apply notwithstanding the marriage, or the testator made other provisions for the surviving spouse intended in lieu of provisions under a will
Children Born After Will Execution
If a child is born to or adopted by a testator after execution of a Hawaii will:
- If the testator had no children when making the will, an after-born child receives a share equal to what the child would have inherited had the testator died intestate—unless the testator devised substantially all of the estate to the omitted child’s other parent
- If the testator has other children provided for under the will, the after-born child’s share is calculated based upon devises, if any, to other children
- An omitted child’s share is inapplicable if the omission appears from the will to have been intentional or if the testator otherwise provided for the child in lieu of the will
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Holographic and Oral Wills
Holographic Wills
Hawaii law recognizes an unwitnessed document intended as a will as a valid holographic will if:
- The testator’s signature and all material provisions of the will are in the testator’s own handwriting
A court may consider evidence outside of the document itself in determining whether a holographic will was in fact intended as a will.
Oral Wills
Oral (or “nuncupative”) wills are not recognized under Hawaii law.
Hawaii Trust Requirements
As of January 1, 2022, Hawaii trusts are primarily governed by Hawaii’s version of the Uniform Trust Code—which adds a new chapter to Title 30 of the Hawaii Revised Statutes and repeals Chapters 554A and 554C and Article VII of Hawaii’s Uniform Probate Code.
Requirements for a Valid Hawaii Trust
To create a valid trust under Hawaii law:
- The settlor must express an intent to create a trust
- The settlor must have adequate capacity (measured under the same standard applying to wills)
- An agent acting under valid power of attorney may also create a trust on a settlor’s behalf if the power of attorney authorizes creation of trusts
- Unless a Hawaii trust is expressly made irrevocable, the settlor is assumed to retain the power to revoke or amend the trust
- A Hawaii trust is void to the extent its creation was induced through fraud, duress, or undue influence
A valid Hawaii trust must have:
- A definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes)
- A trustee with actual duties to perform (The trustee of a Hawaii trust is a fiduciary subject to the “Prudent Investor Rule” and has a duty to administer a trust prudently–taking into account the trust’s terms, purposes, and circumstances)
A Hawaii trust’s purposes must be:
- Lawful
- Possible to achieve
- Not contrary to Hawaii public policy
The terms of a trust and the trust itself must be generally for the benefit of the trust’s beneficiaries, subject to the provisions of the trust.
Types of Hawaii Trusts
Hawaii’s Uniform Trust Code specifically authorizes:
- Charitable trusts created for charitable purposes (such as the relief of poverty, advancement of education or religion, or promotion of health, governmental, or municipal purposes)
- Life insurance trusts
- Trusts created for the care of animals (sometimes called “pet trusts”)
- Land trusts designed to hold title to real estate
Oral Trusts
Though most trusts are evidenced by a written trust instrument setting forth the trust’s terms, the Hawaii Uniform Trust Code allows for oral trusts if the terms can be established by clear and convincing evidence. Certain types of trusts—such as trusts that own real estate—must be evidenced by a formal writing.
Creation Methods
Hawaii trusts can be formed through:
- Transfer of property by a settlor to a trustee (either during life or through a will or other testamentary disposition)
- A declaration by the owner of property that the owner holds the property as trustee
- By exercising a power of appointment in favor of a trustee
- By a court order
Spendthrift Provisions
Although creditors of a trust’s beneficiaries generally may attach a beneficiary’s interest in a trust, Hawaii law protects beneficiary interests from attachment if a trust includes a “spendthrift provision” restricting beneficiaries’ right to transfer interests in the trust. If a spendthrift provision is present, most creditors of beneficiaries cannot attach trust assets until actually distributed to the beneficiary.
However, spendthrift provisions do not prevent attachment for satisfaction of certain domestic support obligations and claims of government agencies.
Creditor Access to Trust Assets
- Creditors of a Hawaii revocable trust’s settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims)
- If a trust is irrevocable, settlors’ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlor’s benefit
Trust Termination
Hawaii trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purposes become unlawful, contrary to public policy, or impossible to achieve
A trust may also be modified or terminated by a court upon the petition of the trustee, beneficiaries, and/or settlor. In some circumstances, modification or termination of a trust may be made upon the consent of the trustee and all beneficiaries.
Upon petition, a court may also reform or modify the terms of a trust to conform to the settlor’s intent or achieve the settlor’s tax objectives.
Special Considerations
Estate Taxes
Hawaii does not have an inheritance tax but is among the 12 states that still impose a state-level estate tax. Estates of Hawaii decedents valued above $5.49 million qualify for the estate tax. The tax is assessed on assets over the limit at rates progressing from 10 – 20% depending on the total estate value.
Simplified Probate Options
Hawaii offers a streamlined small-estates probate process for qualifying estates:
Small Estates Process
Available when:
- Estate does not include Hawaii real estate
- Other assets do not exceed $100,000 in value
Process: Upon probate court approval of a verified petition, the clerk is appointed to administer the estate—collecting and distributing estate assets in accordance with the streamlined procedure.
Summary Probate
Available when:
- Personal property below $100,000
- Estate includes real estate
Process: Works through the court but involves less formality than standard probate.
Non-Probate Transfers
Hawaii law provides several mechanisms for transferring assets without going through probate:
TOD Deeds and Vehicle Titles
Hawaii is among the minority of states that recognize TOD designations on real estate deeds. Real estate subject to a TOD designation automatically transfers to the named beneficiary upon the owner’s death, avoiding the need for probate.
Hawaii does not authorize TOD designations on vehicle titles.
Need help creating the right estate plan for your Hawaii family?
Our estate planning specialists can help you navigate Hawaii’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Estate Tax Impact (Hawaii) | No built-in tax advantages | Can reduce state estate tax exposure |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Estate Tax Impact (Hawaii)
Wills: No built-in tax advantages
Trusts: Can reduce state estate tax exposure
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of Hawaii.
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Frequently Asked Questions
Do I need a lawyer to create a will in Hawaii?
While Hawaii law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately.
What happens if I die without a will in Hawaii?
If you die without a will in Hawaii (intestate), state laws determine how your assets are distributed. Your spouse would receive your entire estate if you have no living parents or children, or if all your children are also your spouse’s children. If you have children who aren’t your spouse’s children, your spouse receives $100,000 plus half the balance, with the remainder going to your descendants. Different rules apply for other family scenarios, which is why having a will is so important to ensure your wishes are followed.
Can I handwrite my own will in Hawaii?
Yes, Hawaii recognizes holographic (handwritten) wills. To be valid, a holographic will must be signed by you, and all material provisions must be in your handwriting. The court may consider outside evidence to determine if the document was intended to be a will. While holographic wills are legally recognized, they often lack important provisions and may be more susceptible to challenges than formally witnessed wills.
How does Hawaii’s estate tax differ from federal estate tax?
Hawaii is one of only 12 states that imposes its own estate tax, which is separate from the federal estate tax. Hawaii’s estate tax applies to estates valued over $5.49 million (compared to the higher federal exemption), with tax rates ranging from 10% to 20%. This means that even if your estate isn’t large enough to trigger federal estate tax, it might still be subject to Hawaii estate tax. Proper estate planning with trusts and other strategies can help minimize this tax burden.
Does Hawaii recognize transfer-on-death deeds for real estate?
Yes, Hawaii is among the minority of states that recognize transfer-on-death (TOD) deeds for real estate. This allows property owners to designate a beneficiary who will automatically receive the property upon the owner’s death, without going through probate. The deed must be properly executed and recorded during the owner’s lifetime, but the beneficiary has no rights to the property until the owner’s death. This can be a simple and effective way to transfer real estate outside of probate.
What’s unique about Hawaii’s “augmented estate” for spousal shares?
Hawaii protects surviving spouses through an “augmented estate” approach to calculating the elective share. Unlike states that base the elective share solely on probate assets, Hawaii’s augmented estate includes the value of most non-probate transfers (like joint tenancy property, POD designations, and trust assets) and even considers the surviving spouse’s own property. The percentage of this augmented estate that a spouse can claim increases with the length of the marriage, ranging from 3% for marriages less than one year to 50% for marriages of 15 years or more.
What is a “spendthrift provision” in a Hawaii trust?
A spendthrift provision in a Hawaii trust restricts beneficiaries from voluntarily or involuntarily transferring their interests in the trust. This means that most creditors cannot reach trust assets before they’re distributed to beneficiaries. Hawaii law specifically recognizes and enforces these provisions, making them a powerful tool for asset protection. However, certain exceptions exist for domestic support obligations and government claims, which can still reach trust assets despite spendthrift language.
Can I create a trust for my pets in Hawaii?
Yes, Hawaii’s Uniform Trust Code specifically authorizes trusts for the care of animals (pet trusts). These trusts allow you to set aside funds and designate a trustee to care for your pets after your death. The trust terminates upon the death of the animal(s) beneficiary. This provides a legally enforceable way to ensure your pets receive proper care according to your instructions, rather than relying on informal arrangements that may not be honored.
2 comments
Fran Wargo Calvert
Can a person in Hawaii amend their already created trust by themselves?
Steven Gibbs
Hello Fran, unfortunately, we can’t offer legal advice and only write general articles for educational purposes. I recommend you connect with an attorney who focuses on wills and trusts in HI.
Best to you!
Steve Gibbs, for I&E
Steven Gibbs is a licensed insurance agent, and the following agent
license numbers of Steven Gibbs are provided as required by state law:
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