In 2022, the latest year for which statistics are available, 60 people received prescriptions under the act and 37 used them to die. (For additional statistics, see the 2022 Our Care, Our Choice Annual Report published by the Hawaii Department of Health.)
This article first clarifies some confusing language related to death with dignity laws and then sets out the basics of Hawaii’s law.
“Death with dignity” and "medical aid in dying" are two of the most commonly accepted phrases describing the process by which a terminally ill person ingests prescribed medication to hasten death. Many people still think of this process as “assisted suicide” or “physician assisted suicide.” However, proponents of death with dignity argue that the term “suicide” doesn’t apply to terminally ill people who would prefer to live but, facing certain death within months, choose a more gentle way of dying. In fact, Hawaii’s law states that terminating one’s life under the law is not suicide. (See Haw. Rev. Stat. § 327L-18 (2024).)
Increasingly, health organizations are turning away from the term “suicide” to describe a terminally ill patient’s choice to reduce the suffering of an inevitable death. The phrase “aid in dying” is becoming a more accepted way to refer to this process.
You may also see the phrase “right to die” used in place of “death with dignity” or "medical aid in dying." However, “right to die” is more accurately used in the context of directing one’s own medical care—that is, refusing life-sustaining treatment such as a respirator or feeding tubes when permanently unconscious or close to death. You can provide your own health care directions by completing a Hawaii advance health care directive. (See the end of this article for more information.)
To request a prescription for life-ending medication in Hawaii, a patient must be:
A patient who meets the requirements above will be prescribed aid-in-dying medication only if:
To use the medication, the patient must be able to ingest it on their own. A doctor or other person who administers the lethal medication may face criminal charges.
The Hawaii Department of Health posts information, forms, and updates here: https://health.hawaii.gov/opppd/ococ/.
You can read the full text of Hawaii’s Our Care, Our Choice Act on the Hawaii legislature’s website.
To find out more about the history and current status of death with dignity laws in the United States, visit the website of the Death With Dignity National Center.
For information about appointing a health care agent and making known your own wishes for medical care at the end of life, see the Living Wills & Medical Powers of Attorney section of Nolo.com.
Updated March 1, 2024
In all states, it is legal to have your loved one’s body at home after they die. Hawaii does not require you to involve a licensed funeral director in making or carrying out final arrangements. (See, for example, Haw. Rev. Stat. § 338-1 (2024), which defines a “person in charge of disposition of the body” as “any person” who makes final arrangements for a deceased person’s remains.)
Hawaii law determines who has the right to make final decisions about a person’s body and funeral services. This right and responsibility goes to the following people, in order:
(Haw. Rev. Stat. § 531B-4 (2024).)
If members of the same class disagree about the disposition of your body, a court must resolve the dispute. To avoid such an outcome, it’s wise to name a decision maker in advance.
How to appoint a representative. To make a legally binding document that appoints someone to carry out your final arrangements, you must use a form that complies with the requirements of Hawaii law, and you must sign your document in front of a notary public. (Haw. Rev. Stat. § 531B-5 (2024).)
The Hawaii law contains a sample form that you can use. You are free to make up your own form, but it must contain language that is substantially similar to Hawaii’s official form.
For more information about making an advance directive in Hawaii, see Living Wills & Medical Powers of Attorney.
Note that, if you are in the military, you may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who pays for your funeral arrangements? You can either pay for your plans before you die, or you can set aside money for your survivors to use for this purpose. If you don’t do either of these things, and there’s not enough money in your estate to pay for funeral goods and services, your survivors must cover the costs.
Embalming is almost never required. In Hawaii, a body must usually be embalmed, cremated, or buried within 30 hours after death. However, if the body is in the custody of the coroner, medical examiner, county, or county physician, it must be embalmed, cremated, or buried within 30 hours of release, or placed in refrigerated storage in a state-approved hospital. (See Hawaii Department of Health Administrative Rule § 11-22-4 (2024).)
Refrigeration or dry ice can usually preserve a body for a short time. There are resources available to help you learn to prepare a body at home for burial or cremation. The website of the National Home Funeral Alliance is a good place to start.
If the person died of a contagious disease, you should consult a doctor.
If you will not be using a funeral director to carry out final arrangements, you must complete and file the death certificate yourself. Hawaii law requires you to file the death certificate with the department of health within three days of the death. (Haw. Rev. Stat. § 338-9 (2024).)
The deceased person’s doctor or advanced practice nurse, or the coroner’s physician must complete the medical portion of the death certificate before filing. The medical certification contains such information as the date, time, and cause of death. (Haw. Rev. Stat. § 338-9 (2024).)
Hawaii now uses an electronic death registration system, but you can still use a paper death certificate. You must go to the local health department and obtain a death certificate worksheet, fill in the section for personal data, and take it to the deceased person’s doctor to complete and sign.
You will need certified copies of the death certificate to carry out other tasks after the death, such as arranging for the disposition of the body and transferring the deceased person’s property to inheritors. You may be able to file the death certificate and get certified copies the same day. If not, you will have to make a return trip to pick up the copies. Be prepared to pay a small fee for each copy.
You must obtain written permission from the local health department before handling the final disposition of remains—for example, burying the body or having it cremated. You’ll also need the health department’s authorization if you plan to move the body from the district where the death occurred. (Haw. Rev. Stat. § 338-23 (2024).)
The death certificate must be filed with the health department before it will issue a permit to move or dispose of the remains. (Haw. Rev. Stat. § 338-25 (2024).)
In Hawaii, bodies must be buried in cemeteries authorized by the county council. (See Haw. Rev. Stat. § 441-2 (2024) and Hawaii Department of Health Administrative Rule § 11-22-5 (2024).) Before burying a body on private land or establishing a family cemetery, you should check with the local registrar.
Some crematories require that you use a funeral director to arrange cremation. If you don’t want to use a funeral director, make sure the crematory is willing to accept the body directly from the family. The burial-transit permit also authorizes cremation—no additional permit is required. (Haw. Rev. Stat. § 338-23 (2024).)
For more information about cremation, including information on scattering ashes, see Burial & Cremation Laws in Hawaii.
Even the staunchest home funeral advocates know that learning to care for one’s own dead can be difficult, especially during a time of grief. If you need help, there are people available to coach you through the process. You can find local guides, consultants, and other resources by visiting the National Home Funeral Alliance website. The book Final Rights, by Joshua Slocum and Lisa Carlson, also offers extensive information on the subject.
For more information about final arrangements and documenting your final wishes in advance, see Nolo’s section on Getting Your Affairs in Order.
]]>But it's not just Hawaii residents who might owe Hawaii estate tax. If you're a nonresident but own real estate or other assets—such as a vacation home or a boat—located in Hawaii, your estate will also need to consider Hawaii estate tax rules.
If you die while a resident of Hawaii, the personal representative or executor of your estate will need to file the Hawaii estate tax return and pay the state estate tax if your "taxable estate" adds up to more than $5.49 million. Although the process can get quite complicated, the taxable estate is generally calculated by determining your "gross estate" and then subtracting available deductions.
The gross estate will include just about all of the property you leave behind, such as:
Co-owned property. If you own assets with someone else, generally only your share will be included in your estate. In other words, if you and your spouse own your house, half of its value would be included in your estate.
Nonprobate assets. Notably, your gross estate also includes non-probate assets. For example, the property you hold in a revocable living trust avoids probate, but it does not avoid estate taxes, and is counted in your gross estate.
Nonresidents. If you’re not a resident of Hawaii but own real estate or tangible property located in Hawaii, your estate might owe Hawaii estate tax. A ratio (essentially the value of your property that is located in Hawaii to the total value of your gross estate) is used to determine the tax your estate owes.
Any available deductions will be subtracted from the gross estate to arrive at the taxable estate. If the deductions lower your taxable estate below $5.49 million, no estate tax will be due. These deductions include:
If your estate owes estate tax, how much will it actually owe? In Hawaii, the first $5.49 million of the estate is not taxed. On the portion that exceeds $5.49 million, the estate tax rate ranges from 10% to 20%. (Compare these rates to the current federal estate tax rate of 40%.) To calculate the exact amount of tax owed, see the table at the end of the Instructions for Form M-6.
Hawaii, like the federal government, allows a surviving spouse to use the unused portion of a deceased spouse's estate tax exemption. This is referred to as the "portability" of the exemption. For example, if the first spouse to die does not use any of the exemption (say, because everything went to the surviving spouse under the marital deduction), then the second spouse to die will be able to use two $5.49 million exemptions—that's nearly $11 million without owing estate taxes to Hawaii. To take advantage of this provision, however, state and federal estate tax returns must be filed at the death of the first spouse to die.
The executor must file the Hawaii estate tax return and pay any tax due nine months after the date of death. The state may grant a six-month extension to file the return itself, but this extension doesn’t give the executor extra time to pay the estimated tax. If the estimated tax is not paid on time, interest starts to accrue on the unpaid tax.
If your estate owes Hawaii estate tax but not federal estate tax (that is, if you fall between the state and federal exemption amounts), your executor will still have to attach a version of the federal estate tax return with the Hawaii estate tax return; this federal return is not actually filed with the federal government, but is used by Hawaii as supporting documentation.
Your executor will likely have to hire professional help (an experienced lawyer or CPA) to prepare the Hawaii estate tax return. The estate's funds can be used to pay for professional fees. For background information and tax forms, see the Hawaii Department of Taxation website.
For more on estate planning issues specific to Hawaii, see Nolo's section on Hawaii Estate Planning.
]]>Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don’t have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Hawaii.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with: |
here’s what happens: |
children but no spouse | children inherit everything |
spouse but no descendants or parents | spouse inherits everything |
spouse and descendants from you and that spouse, and the spouse has no other descendants | spouse inherits everything |
spouse and descendants from you and that spouse, and the spouse has descendants from another relationship | spouse inherits $150,000 of your intestate property plus 1/2 of the balance your descendants inherit everything else |
spouse and descendants from you and someone other than that spouse | spouse inherits $100,000 of your intestate property plus 1/2 of the balance your descendants inherit everything else |
spouse and parents | spouse inherits $200,000 of intestate property plus 3/4 of the balance parents inherit everything else |
parents but no spouse or descendants | parents inherit everything |
siblings but no spouse, descendants, or parents | siblings inherit everything |
(Haw. Rev. Stat. §§ 560:2-102; 560:2-103 (2023).)
In Hawaii, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants—children, grandchildren, or great-grandchildren. If you don’t, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:
If you die with parents but no descendants. Your surviving spouse inherits the first $200,000 of your intestate property, plus 3/4 of the balance. (Haw. Rev. Stat. § 560:2-102 (2023).)
Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry’s retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also owns $300,000 worth of property that would have passed under a will if she had made one. Joe inherits $275,000 worth of that property—that is, $200,000 plus 3/4 of the $100,000 balance. The remaining $25,000 worth of Gerry’s intestate property goes to Gerry’s father.
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from other relationships. Your surviving spouse inherits everything. (Haw. Rev. Stat. § 560:2-102 (2023).)
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has descendants from other relationships. Your surviving spouse inherits $150,000 of your intestate property plus 1/2 of the balance. (Haw. Rev. Stat. § 560:2-102 (2023).)
Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $450,000 worth of other property that would have passed under a will, so Karen inherits $300,000 worth of that property—that is, $150,000 plus 1/2 of the $300,000 balance. The remaining $150,000 goes to Bill’s and Karen’s two children.
If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits $100,000 of your intestate property plus 1/2 of the balance. (Haw. Rev. Stat. § 560:2-102 (2023).)
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $150,000 worth of Barrett’s property. Barrett’s daughter inherits the remaining $50,000 share of Barrett’s property.
In Hawaii, the rules for married people also apply to reciprocal beneficiaries.
If you die without a will in Hawaii, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have, whether or not you are married, and whether they are also your spouse’s children. (See the table above.)
For children to inherit from you under the laws of intestacy, Hawaii must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. (Haw. Rev. Stat. § 560:2-105 (2023).)
However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins.
If you die without any heirs and have an interest in kuleana lands, this property will go to the Department of Land and Natural Resources and be held in trust until the Office of Hawaiian Affairs develops a land management plan for its use. (Haw. Rev. Stat. § 560:2-105.5 (2023).)
Here are a few other things to know about Hawaii intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There’s No Will.
You can find Hawaii’s intestate succession law here: Hawaii Statutes §§ 560:2-101 to 560:2-114.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
]]>Here’s a quick checklist for making a will in Hawaii:
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
In Hawaii, if you die without a will, your property will be distributed according to state "intestacy" laws. Hawaii's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
No. You can make your own will in Hawaii, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or you have especially complicated goals, you should talk with an attorney. See Do I Need an Attorney to Make My Estate Plan?
To make a will in Hawaii, you must be:
A will in Hawaii can pass the property you owned at the time of your death, as well as property your estate obtains after you pass. Haw. Rev. Stat. § 560:2-602.
You must make your will on hard copy. It cannot be on an audio, video, or any other digital file. (Although, see “Can I Make a Digital or Electronic Will?” below.) Hawaii does permit handwritten wills (Haw. Rev. Stat. § 560:2-502), but they are usually not a good idea.
To finalize your will in Hawaii:
Your witnesses must sign your will within a reasonable time after witnessing you sign it or acknowledge it as your will. Haw. Rev. Stat. § 560:2-502. Holographic wills do not have to be witnessed as long as the signature and material parts of it are in the will maker's handwriting. Haw. Rev. Stat. § 560:2-502.
Although Hawaii allows an "interested person" who stands to inherit under the will act as a witness, it is usually not a good idea. Haw. Rev. Stat. § 560:2-505.
No, in Hawaii, you do not need to notarize your will to make it legal.
However, Hawaii allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. Haw. Rev. Stat. § 560:2-504.
Yes. In Hawaii, you can use your will to name a personal representative who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust produces a letter to your personal representative that generally explains what the job requires. If you don't name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.
In Hawaii, you may revoke or change your will at any time. You can revoke your will by:
If you and your spouse divorce (or if a court determines that your marriage is not legal), Hawaii law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule does not apply if you specifically state in your will (or divorce decree or contract relating to the division of your property) that divorce should not affect the provisions in your will. Haw. Rev. Stat. § 560:2-804. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.
If you need to make changes to your will, it’s best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Hawaii currently doesn't allow e-wills, but that may change in the future.
You can find Hawaii’s laws about making wills here: Hawaii Revised Statutes Title 30A Uniform Probate Code Chapter 560 Uniform Probate Code.
]]>In Hawaii, a death certificate must be filed with the department of health within three days. (Haw. Rev. Stat. § 338-9.) Typically, the funeral home, mortuary, cremation organization, or other person in charge of the deceased person’s remains will prepare and file the death certificate.
You might need to obtain copies of a death certificate for a number of reasons. You might simply want a copy for your personal records or, if you're in charge of wrapping up the deceased person’s affairs, you may need multiple official copies to carry out your job. For example, you'll need to submit a certified copy of the death certificate each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable on death accounts, veterans benefits, and many others.
The easiest way to get copies of a death certificate is to ask the person or organization that files the certificate (such as the funeral home) to order them for you at the time of the death. If you're the executor of the estate, you should ask for at least 10 certified copies.
If you need to order copies of a death certificate later, visit the website of the Hawaii Department of Health. From there, you can download a mail-in order form or find information on requesting death certificates in person. (An online ordering system is currently in the works.)
You must provide a copy of your government-issued photo ID when ordering a death certificate. The first certified copy of a Hawaii death certificate costs $10. Additional copies cost $4 each.
In Hawaii, a certified copy of a death certificate will be issued to you only if you have a “direct and tangible” interest in the record. People who have such an interest include:
For the full list of eligible people, see Hawaii Revised Statutes § 338-18.
The funeral home director or other person in charge of the disposition of the body must obtain certain information to complete and file the death certificate. Personal details usually come from next of kin, while the cause of death portion usually comes from the physician, physician assistant, or advanced practice registered nurse who last attended the deceased person. If the death occurred without medical attendance, the case is referred to the local health officer. If the circumstances suggest that the death wasn't due to natural causes, then the coroner will investigate and certify the cause of death instead. (Haw. Rev. Stat. § 338-9.)
Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Most U.S. states give the option of embalming or refrigerating a body if burial or cremation doesn't happen within a certain time of death.
However, in Hawaii, if a body is not cremated or buried within 30 hours after death, it must be embalmed. There are a few exceptions if:
(Hawaii Admin. Rule § 11-22-4.)
A casket is often the single greatest expense incurred after a death. The average cost of a casket is more than $2,000, and the price can run into the $10,000-$20,000 range for more elaborate designs and expensive materials. Whether due to the cost or for other reasons, some people prefer to forgo a casket altogether.
Burial. No law requires a casket for burial. However, you should check with the cemetery; it may have rules requiring a certain type of container. Additionally, if the body is being transported by a common carrier, it must be placed in a casket. (Hawaii Admin. Rule § 11-22-6.)
Cremation. No law requires a casket for cremation. On the contrary, federal law requires a funeral home or crematory to inform you that you may use an alternative container, and to make such containers available to you. An alternative container may be made of unfinished wood, pressed wood, fiberboard, or cardboard.
No. Although funeral homes may sometimes be very pushy about getting you to buy caskets from them, federal law requires funeral homes to accept caskets that consumers have purchased from another source, such as an online retailer. (Learn more about your consumer rights under the FTC Funeral Rule.) You may also build your own casket, if you prefer.
Alkaline hydrolysis (more informally called "water cremation," "flameless cremation," "aquamation," "aqua cremation," and many other terms) is a chemical process that reduces a body to components of liquid and bone. It's considered a greener alternative to cremation because it uses less energy than cremation and does not release matter into the atmosphere.
In 2022, Hawaii explicitly recognized aquamation as an acceptable form of disposition when it added a definition of "water cremation" to its laws:
“Water cremation” means alkaline hydrolysis, which is the reduction of human remains to bone fragments and essential elements using heat, pressure, water, and base chemical agents.
While water cremation or aquamation is acknowledged by law, you might be able to find only a small number of facilities offering the service in Hawaii. The equipment is expensive and public demand is still small, though it's growing. With time, facilities offering water cremation are likely to become more commonplace.
If you're interested in this option for yourself, you may want to explore pre-planning your final arrangements. Water cremation tends to cost a little more than traditional cremation. (For example, see this 2023 NPR interview on water cremation in which one funeral home prices its water cremation service at $1,000 more than traditional cremation.)
Learn more about alkaline hydrolysis.
In Hawaii, bodies must be buried on land approved as a cemetery by the Director of Health. (Hawaii Admin. Rule § 11-22-5.) Additionally, a person must obtain a burial-transit permit before burying a body. (This permit is also necessary if the body will be transported by common carrier—such as airplane or train.)
While Hawaii does allow "family burial plots" (Haw. Rev. Stat. § 441-5.5), before burying a body on private land or establishing a family cemetery, you should check with the local registrar for any rules specific to your area.
In Hawaii, there are no state laws controlling where you may keep or scatter ashes. Ashes may be stored in a crypt, niche, grave, or container at home. If you wish to scatter ashes, you have many options. Generally, use common sense and refrain from scattering ashes in places where they would be obvious to others.
Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.
Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else’s private land, it’s wise to get permission from the landowner.
Scattering ashes on public land. You may wish to check both city and county regulations and zoning rules before scattering ashes on local public land, such as in a city park. However, many people simply proceed as they wish, letting their best judgment be their guide.
Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, developed areas, campsites, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. If the container will not easily decompose, you must dispose of it separately. The EPA does not permit scattering at beaches or in wading pools by the sea. Finally, you must notify the EPA within 30 days of scattering ashes at sea.
The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway.
For more information, including the contact information for the EPA representative in Hawaii, see the EPA's page on Burial at Sea.
The Hawaii Department of Land and Natural Resources states that as long as the scattering ceremony will not involve a large crowd and a number of vessels, you don’t need a permit. You should disperse the ashes beyond the reef line and, if you wish to scatter flowers along with the ashes, use loose flowers rather than leis because the strings of leis endanger marine animals.
If you are planning a large scattering ceremony, you should contact the Division of Boating and Ocean Recreation at least 14 days in advance to obtain an ocean event permit. The permit is free.
Scattering ashes by air. While there are no state laws on the matter, federal aviation laws do prohibit dropping any objects that might cause harm to people or property. The U.S. government does not consider cremains to be hazardous material; all should be well so long as you remove the ashes from their container before scattering.
To learn about the federal rule on funerals, which protects consumers in all states, visit the FTC's Funeral Rule page.
For more information about funeral laws in Hawaii, see Hawaii Home Funeral Laws.
To find out more about funerals and other final arrangements, see Nolo's section on Getting Your Affairs in Order.
Get It Together, by Melanie Cullen (Nolo), helps you gather and organize the essential details of your life for yourself and your family.
]]>Hawaii offers a procedure that allows inheritors to skip probate altogether. To qualify, the estate must meet these requirements:
(Haw. Rev. Stat. § § 560:3-1201 and following.)
If your estate meets the requirements listed above, all your inheritor has to do is sign a simple document under oath, called an affidavit. The Affidavit for Collection of Personal Property contains statements that the estate meets the requirements listed above, and identifies the property being collected.
After signing the document (and swearing to its truthfulness) and having it notarized, the inheritor simply presents the affidavit to the person or institution holding the property—for example, a bank where the deceased person had an account. The inheritor will also need to provide a certified copy of the death certificate. After that, the person or institution transfers the property to the inheritor.
Another probate shortcut that Hawaii offers is a simplified probate process for small estates, called "summary administration" (or "summary probate"). Unlike the affidavit procedure discussed above, summary administration does not allow your survivors to skip probate. However, the probate process is much more streamlined than full probate, saving time, probate fees, and potentially lawyer fees.
You can use summary administration in Hawaii if it appears that the value of the entire estate, less liens and encumbrances (meaning after debts are subtracted), does not exceed the value of:
(Haw. Rev. Stat. § § 560:3-1203 and following.) So what does all this mean? It's tricky not to have an exact dollar amount to compare against the size of your estate, but it really depends on your circumstances—for example, whether you leave behind a spouse and/or children.
The bottom line is that if the size of your estate doesn't exceed these amounts, which can be set aside from your estate by law, your executor or personal representative can wrap up your estate in probate court very quickly because there aren't any remaining assets after these amounts are paid out.
To begin summary administration in Hawaii, you'll have to open a probate case in probate court, just like regular probate. You'll also request to be appointed as the personal representative.
Once the court has approved, and you've distributed all of the property, you'll file a closing statement. This document states that:
(Haw. Rev. Stat. § § 560:3-1204 and following.)
For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).
For more on Hawaii estate planning issues, see our section on Hawaii Estate Planning.
]]>A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.
Many people create a revocable living trust as part of their estate plan. These trusts can be modified or revoked at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you are alive, you retain control of the trust and its property. In your trust document, you will also name a "successor trustee" to take over and manage the trust (distribute your property) after you die. (If you create a shared living trust, as is often done by spouses, then your successor trustee would assume control after both spouses have died.)
In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them time, hassle, and money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.
However, Hawaii is one of the states that has adopted the Uniform Probate Code, a model law that streamlines the probate process. In other words, probate in Hawaii might not be quite as cumbersome as it is in other states. In addition, Hawaii offers simplified probate processes for "small" estates:
If you qualify for one of these probate shortcuts, or if you are satisfied with Hawaii's more streamlined probate process in general, you could very reasonably decide not to make a living trust just to avoid probate. Still, there are a few other advantages of making a living trust. (See Living Trust vs. Will.)
Additionally, in Hawaii, you can transfer real property using a transfer-on-death deed; this can keep your home out of probate without creating a living trust.
Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:
If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by Hawaii state law.
Probably not. Most people do not need to worry about federal estate taxes because the federal estate tax is levied only on estates worth close to $12 million (or almost $24 million for married couples). That said, Hawaii has its own separate state estate tax, which has a lower threshold (as well as a lower tax rate).
If you are worried about estate taxes, you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid estate taxes—but you'll want to consult a lawyer.
To make a living trust in Hawaii, you:
You can use WillMaker & Trust to make a living trust using your computer. It has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, transfer on death deeds, and many other useful documents. Use it just for yourself or for your entire family.
For more on Hawaii estate planning issues, see Hawaii Estate Planning.
]]>You can make several different types of POAs in Hawaii. In particular, many estate plans include two POAs:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Hawaii.
For your POA to be valid in Hawaii, it must meet certain requirements.
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Hawaii courts. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer.
While Hawaii does not technically require you to get your POA notarized, notarization is strongly recommended. Under Hawaii law, when you sign your POA in the presence of a notary public, you signature is presumed to be genuine—meaning your POA is more ironclad. In addition, many financial institutions will require a POA to be notarized (even if state law doesn't require it) before they accept it.
Hawaii offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire a Hawaii lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or initialing, from a list, each specific power you want your agent to have. For example, you might choose to grant your agent the power to act for you with respect to these subject areas:
In Hawaii, your POA is durable (effective even after incapacitation) unless it explicitly states that it terminates when you become incapacitated.
As mentioned above, in Hawaii, you should have your POA notarized.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you initialed "real property," giving your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office that oversees the real estate you own. In Hawaii, which has a dual land records system that operates state-wide, this office would be either the Bureau of Conveyances (the regular system) or the Office of the Assistant Registrar of the Land Court (the land courts system). If you put your POA on file in the appropriate office, this will allow the office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Hawaii allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in Hawaii, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on Hawaii estate planning issues, see our section on Hawaii Estate Planning.
]]>In Hawaii, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In Hawaii, these forms of joint ownership are available:
In Hawaii, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
Hawaii lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
Hawaii allows you to leave real estate with transfer-on-death deeds, also called beneficiary deeds. You sign and record the deed now, but it doesn't take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death. Haw. Rev. Stat. § 527-1.
Hawaii does not allow transfer-on-death registration of vehicles.
Even if you don't do any planning to avoid probate, your estate may qualify for Hawaii's simplified "small estate" probate procedures. For more details, see Probate Shortcuts. For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).
]]>