Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Hawaii to address your specific situation.
Detailed Answer
Discovering an old will decades after its execution raises two main questions under Hawaii law: is the document valid, and how do you probate it? Follow these steps to verify authenticity and admit the will to probate.
1. Confirm Will Formalities
Under Hawaii’s Probate Code, a valid will must be in writing, signed by the testator (the person who made the will), and witnessed by two competent individuals who observe the testator sign or acknowledge the signature. See HRS §560:6-101 and HRS §560:6-103.
2. Gather Supporting Evidence
- Locate the original document and verify the testator’s signature and witness signatures.
- Collect affidavits or testimony from surviving witnesses or others familiar with the testator’s handwriting and mental capacity at execution.
- If portions are missing or the will was lost and later found, prepare to prove its contents and due execution under the “lost will” statute: HRS §560:5-502. This requires two disinterested witnesses to testify or provide sworn statements.
3. File a Probate Petition
Submit a petition to the Hawaii Circuit Court in the county where the decedent was domiciled at death. Attach:
- Original will (or copy, plus proof of loss).
- Certified death certificate.
- List of heirs and beneficiaries.
- Affidavits or witness statements verifying authenticity.
Refer to the procedural rules in HRS §560:3-301 and notice requirements in HRS §560:3-302. Serve notice on all interested parties, including heirs at law and named beneficiaries.
4. Attend the Probate Hearing
The court will schedule a hearing. Present your evidence of due execution, witness testimony, and proof of nonrevocation. If the judge is satisfied, the will will be admitted to probate. The court issues Letters Testamentary to the appointed personal representative, who then inventories assets, pays debts, and distributes property according to the will.
5. Timing and Considerations
Hawaii imposes no strict deadline for probating a discovered will, but early action preserves estate value and resolves beneficiary claims efficiently. Delays can increase costs and complicate notices to heirs.
Helpful Hints
- Keep the original will in a secure, dry place and handle it carefully to preserve signatures and seals.
- Track down and interview witnesses promptly; memories fade over time.
- If the will lacks a self-proving affidavit, gather notarizations or witness affidavits to confirm signatures.
- Consult the Hawaii Probate Code online at the Hawaii State Legislature’s website for updates: https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/
- Consider working with a probate attorney for complex cases, such as contested will validity or missing pages.