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How to Avoid Probate in Hawaii
Pillar GuideHawaii24 min read

How to Avoid Probate in Hawaii

Avoid Hawaii probate with TOD deeds, POD accounts, and TOD securities outside probate.

By Settled Editorial

In Hawaii, an asset skips probate when a recorded deed, an account contract or a registration already names the person who takes it at death. That covers real property under a recorded transfer-on-death deed, joint tenancy and tenancy by the entirety, payable-on-death bank accounts, securities registered in TOD form, life insurance and retirement money with a living beneficiary named, and anything already retitled into a living trust.

Everything else goes to the Circuit Court for the judicial circuit where the decedent lived. Hawaii runs probate through four judicial circuits rather than a county probate court, and the Hawaii probate guide walks through that process if someone has already died.

Two Hawaii facts shape every plan on this page. First, the state has one recording office for land, the Bureau of Conveyances, plus a separate Land Court for registered (Torrens) title. There is no county recorder anywhere in the islands. Second, Hawaii treats a reciprocal beneficiary under HRS chapter 572C much like a spouse for property purposes, so each tool below says where that status counts.

Use this page as a planning map. Each tool names the Hawaii section that creates it, the step that makes it work, and the catch national pages leave out.

Start With What Hawaii Probate Costs

National pages sell a living trust as the escape from a ruinous court bill. Hawaii's filing bill is modest, so weigh the trust on other grounds.

HRS 607-5 sets the probate fee at $100, paid once only for each decedent's estate. The same section adds a $50 administrative fee on civil filings, and HRS 607-5.7 adds a $65 indigent legal services surcharge. The Hawaii State Judiciary's List of Civil Filing Fees prints all three under Probate, for an opening total of $215.

The larger costs sit elsewhere: publication of the creditor notice, appraisals, attorney time, and months of waiting. With published notice, creditors have four months to come forward. Without it, the bar stretches to eighteen months after death. The Hawaii probate timeline lays out each clock. Time and privacy are the real reasons Hawaii families plan around probate.

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The Transfer-On-Death Deed

Hawaii adopted the Uniform Real Property Transfer on Death Act as HRS chapter 527 in Act 173 of 2011. Under HRS 527-3, it applies to a deed signed at any time by a transferor who dies on or after July 1, 2011.

HRS 527-5 lets an individual transfer property, effective at death, to one or more beneficiaries by a transfer on death deed. HRS 527-2 limits "property" to an interest in real property located in Hawaii, so a Hawaii deed cannot carry a mainland house.

What the deed must contain

HRS 527-9 sets three requirements. The deed:

  1. Must contain the elements and formalities of a properly recordable inter vivos deed.
  2. Must state that the transfer to the beneficiary occurs at the transferor's death.
  3. Must be recorded with the Bureau of Conveyances or filed with the assistant registrar of the Land Court, as applicable, before the transferor's death.

A signed deed left in a drawer carries nothing. Record it while the owner is alive.

HRS 527-8 sets the mental capacity to sign or revoke the deed at the same level required to make a will. HRS 527-10 makes the deed effective without notice to the beneficiary, delivery, acceptance, or payment. You can sign and record it without telling anyone.

The owner keeps full control

HRS 527-12 says that during the owner's life the deed does not affect the owner's right to sell or mortgage the property, gives the beneficiary no legal or equitable interest, leaves the owner's creditors' rights untouched, and has no effect on eligibility for public assistance. HRS 527-6 makes every transfer on death deed revocable, even if the deed itself says otherwise.

Revoking one takes paperwork, never a shredder

HRS 527-11(a) accepts only three revoking instruments: a later transfer on death deed, a written instrument of revocation, or an inter vivos deed that expressly revokes the TOD deed. Each must be acknowledged after the deed it revokes, and each must be recorded or filed before the owner dies. HRS 527-11(c) says that once the deed is recorded, burning, tearing, canceling or destroying it revokes nothing. A will cannot revoke it either, because a will is none of the three.

Where joint owners signed one deed, HRS 527-11(b) revokes it only if every living joint owner revokes it.

The Land Court step

Hawaii keeps two land title systems, and the deed works in both. The catch is what happens after death on registered land.

HRS 527-5 makes any transfer of property "of which any portion is registered in the land court" subject to HRS 527-13(a)(1). That paragraph says a petition noting the transferor's death and asking for a new certificate of title in the beneficiary's name "shall be filed and processed with the land court before the interest in the subject property is transferred."

So a TOD deed on Land Court property avoids probate, and the beneficiary still has a court filing to make. Check which system holds your title before you sign. The full deed walk-through sits on a Hawaii transfer on death deed.

What the beneficiary takes at death

HRS 527-13 sets the rules at death:

  • The beneficiary must survive the owner, or that share lapses (527-13(a)(2)).
  • Two or more beneficiaries take equal, undivided shares with no right of survivorship, and a lapsed share goes to the others in proportion (527-13(a)(3) and (4)).
  • The beneficiary takes subject to every mortgage, lien and encumbrance on the property at death (527-13(b)).
  • If the owner was a joint owner and another joint owner survives, the property belongs to the survivor and the TOD deed has no effect. The deed works only when the last surviving joint owner dies (527-13(c)).
  • The deed passes title without covenant or warranty, even if it says otherwise (527-13(d)).

HRS 527-13(a) also runs the deed through Hawaii's probate code rules on the elective share, antilapse, the 120-hour survival rule, the slayer rule and divorce. A divorce or the end of a reciprocal beneficiary relationship revokes a gift to the former partner under HRS 560:2-804.

Where Hawaii Pulls TOD Property Back

A recorded deed avoids probate. It does not wall the house off from the estate's bills.

HRS 527-15(a) lets the estate enforce an allowed claim, or a statutory allowance to a surviving spouse or child, against property passed by a transfer on death deed to the extent the probate estate is insufficient. Where two or more properties passed by TOD deed, 527-15(b) splits the liability by their net values at death. Under 527-15(c), the estate must start that proceeding within eighteen months of the death.

The elective share reaches this property too. HRS 560:2-205 counts a decedent's nonprobate transfers to others, including joint tenancy interests and POD and TOD registrations, in the augmented estate a surviving spouse or reciprocal beneficiary can elect against. A plan that routes everything around a spouse through TOD forms does not cut the spouse out.

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Joint Tenancy and Tenancy by the Entirety

HRS 509-2(a) lets an owner convey property to oneself and another as joint tenants, and lets spouses or reciprocal beneficiaries convey to themselves as tenants by the entirety, without routing the deed through a third party. The instrument has to show the intent "manifestly." When one joint tenant or tenant by the entirety dies, the survivor owns the property and no probate opens for that asset.

Joint ownership works for a couple and fails as a plan for anyone else. It hands a co-owner a present interest, and it only delays probate until the survivor dies owning the property alone.

Hawaii adds one planning feature couples should know. HRS 509-2(b) lets spouses or reciprocal beneficiaries move entireties real property into a joint revocable trust, or into two separate revocable trusts as tenants in common, and keep the same immunity from their separate creditors they had as tenants by the entirety. HRS 509-2(c) sets the conditions: the couple stays married or registered, the property stays in the trust, both stay beneficiaries, the trust name includes their names, and the deed recorded at the Bureau of Conveyances or filed in Land Court refers to section 509-2 and states the property will be immune from their separate creditors. Under 509-2(d), that protection continues after the first death as to the decedent's separate creditors. Under 509-2(f), a divorce or the end of the reciprocal beneficiary relationship ends it.

Divorce also rewrites survivorship. HRS 560:2-804(b)(2) severs a joint tenancy between former spouses or former reciprocal beneficiaries and turns it into a tenancy in common.

Payable-On-Death and Joint Bank Accounts

Hawaii's multiple-party account rules sit in part 1 of article VI of the probate code, HRS 560:6-101 to 560:6-113.

  • POD account. HRS 560:6-104(b) sends the balance, at the death of the last original payee, to the POD payee or payees who survive.
  • Joint account. HRS 560:6-104(a) gives sums on deposit to the surviving party unless there is clear and convincing evidence of a different intention when the account was opened.
  • Trust account (the "in trust for" form). HRS 560:6-104(c) sends the balance to the named beneficiaries who survive the last trustee.

HRS 560:6-104(e) says a right of survivorship or a POD designation cannot be changed by will. HRS 560:6-106 makes these transfers nontestamentary, so they stay out of probate.

HRS 560:6-107 is the claw-back. If the personal representative's assets fall short of paying taxes, administration expenses, and the homestead and family allowances, the POD payee or surviving party can be required to account for the decedent's net contribution to cover the gap. The personal representative, the surviving spouse or reciprocal beneficiary, or someone acting for a dependent or minor child can ask. No such proceeding may start more than two years after the death.

Adding a POD payee is a form at the bank or credit union. Do it for every account.

Securities Registered in TOD Form

Hawaii enacted the Uniform Transfer-on-Death (TOD) Security Registration Act as HRS chapter 539 in 1998. HRS 539-5 lets the registration show the words "transfer on death" or "TOD," or "pay on death" or "POD," after the owner's name and before the beneficiary's.

HRS 539-7 passes ownership, at the death of the sole owner or the last surviving co-owner, to the beneficiaries who survived all owners. The brokerage reregisters the account on proof of death and its own paperwork. If no beneficiary survives, the security falls back into the owner's estate. HRS 539-9(a) makes the transfer nontestamentary, and 539-9(b) says the chapter does not limit creditors' rights under other Hawaii law.

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Retirement Accounts and Life Insurance

A 401(k), IRA, pension, annuity or life insurance policy pays whoever is named on the form the plan or insurer holds. Probate usually happens here by accident: a blank form, a beneficiary who died first, or a form naming the estate can send the money into the estate under the plan's own terms.

Divorce matters here too. HRS 560:2-804(b)(1) revokes a revocable beneficiary designation in favor of a former spouse or former reciprocal beneficiary, and that person's relatives, once the divorce or termination is final. HRS 560:2-804(g) protects a payor who pays the old beneficiary before receiving written notice, so send the notice by registered or certified mail, return receipt requested. Pull every form once a year and read the name on it.

The Revocable Living Trust

Hawaii trust law sits in HRS chapter 554D, the Uniform Trust Code, enacted by Act 32 of 2021.

HRS 554D-602(a) makes a trust revocable by the settlor unless its terms expressly say it is irrevocable. Read the second sentence before relying on it: that rule does not apply to a trust created under an instrument signed before January 1, 2022, so an older Hawaii trust needs its own language checked.

HRS 554D-602(c) lets the settlor revoke or amend by following, in all important respects, the method the trust sets out. Where the trust names no method, any written and signed method that shows the settlor's intent by clear and convincing evidence works.

Two more subsections decide whether the plan holds up if the settlor loses capacity. HRS 554D-602(e) lets an agent under a power of attorney revoke, amend or distribute trust property only to the extent expressly authorized by both the trust terms and the power itself. See a Hawaii power of attorney for the drafting side. HRS 554D-602(f) lets a conservator exercise those powers only with the approval of the court supervising the conservatorship.

A trust avoids probate only for what it holds. Retitle the house by deed to the trustee, and move accounts into the trust's name or name the trust as POD payee. Anything left in the settlor's own name at death still goes to probate.

A revocable trust is not a creditor shield. HRS 554D-505(a)(1) exposes trust property to the settlor's creditors during life. HRS 554D-505(a)(3) makes property of a trust that was revocable at death answer for the settlor's creditors, administration costs, funeral expenses, and statutory allowances to a surviving spouse or reciprocal beneficiary and children, to the extent the probate estate cannot cover them.

Setup and funding are covered on a revocable living trust in Hawaii, and the steps a trustee takes after death are on Hawaii trust administration.

The After-Death Shortcuts

Planning ahead is best, but Hawaii offers two routes that keep a small estate out of a full probate case.

The collection affidavit. HRS 560:3-1201 lets a successor collect personal property by presenting a death certificate and an affidavit stating that:

  1. The gross value of the decedent's estate in Hawaii does not exceed $100,000, except that motor vehicles registered in the decedent's name may transfer this way regardless of value.
  2. No application or petition for appointment of a personal representative is pending or has been granted in Hawaii.
  3. The successors are entitled to the property, with their relationship to the decedent explained.

The section sets no waiting period, and the measure is gross value, not value after debts. It moves personal property only, so it cannot carry a house. Hawaii's Department of Human Services may use the same affidavit for a Medicaid recovery claim, and its affidavit has priority. The full walk-through is on the $100,000 collection affidavit.

Clerk administration. Where a decedent left property in Hawaii worth no more than $100,000 in total and no personal representative has been appointed, HRS 560:3-1205 lets the clerk of the Circuit Court administer the estate on a verified petition. HRS 560:3-1211 replaces court costs on that route with actual expenses plus a fee of three percent of the market value of the first $100,000 of the gross estate, paid to the State.

Vehicles follow HRS 286-52(f): after an inheritance the certificate of ownership is signed by the personal representative or successor in interest and filed with the county director of finance. Counter steps are on transferring a vehicle in Hawaii.

Digital Accounts

Online accounts pass under their own rules. HRS 556A-4 lets a user direct a custodian, through the provider's online tool, to disclose or withhold digital assets, and that direction overrides a contrary will, trust or power of attorney. Without an online tool direction, the will, trust or power of attorney controls. Plan these alongside the rest, covered on Hawaii digital assets.

Avoiding Probate Does Not Avoid the Hawaii Estate Tax

Hawaii taxes estates under HRS chapter 236E. HRS 236E-8 applies the tax to every resident decedent and to a nonresident whose gross estate includes Hawaii real property or tangible personal property located in Hawaii.

The base is the gross estate. HRS 236E-2 defines "gross estate" by sections 2031 to 2046 of the Internal Revenue Code. Those sections pull in property in a revocable trust (26 U.S.C. 2038) and jointly held property (26 U.S.C. 2040). A TOD deed, a POD account and a living trust all move property around probate, and none of them moves it out of the taxable estate.

The exclusion is frozen. HRS 236E-6 sets it by the Internal Revenue Code "as amended as of December 21, 2017, as if the decedent died on December 31, 2017," and HRS 236E-6(c)(1) presumes any decedent with property in Hawaii died a resident. An estate well under today's federal exclusion can still owe Hawaii tax. See the estate tax still applies for the rates and the return.

What Does Not Avoid Probate

  • A will. Every will goes through probate. It directs who inherits, and it cannot override a POD form (HRS 560:6-104(e)) or revoke a recorded TOD deed (HRS 527-11).
  • An unrecorded TOD deed. HRS 527-9(3) requires recording or filing before death.
  • A tenancy in common. Each owner's share passes through that owner's estate.
  • An unfunded trust. Property left in the settlor's own name goes to probate.
  • Real property under the affidavit. HRS 560:3-1201 moves personal property only.
  • Out-of-state land. A Hawaii TOD deed covers Hawaii property only, so a mainland house needs its own plan in that state.

A Hawaii Checklist

  1. List every asset and how it is titled today, including whether each parcel is Bureau of Conveyances (regular system) or Land Court property.
  2. For each Hawaii parcel, choose a TOD deed, tenancy by the entirety, or a transfer into a revocable trust.
  3. Record any TOD deed with the Bureau of Conveyances or file it with the Land Court's assistant registrar now, not later.
  4. Tell Land Court beneficiaries that they will need to petition for a new certificate of title after the death.
  5. Add POD payees to every bank and credit union account.
  6. Register brokerage accounts in TOD form under HRS chapter 539.
  7. Review every retirement and life insurance beneficiary form, and update each one after a divorce or the end of a reciprocal beneficiary relationship.
  8. If you sign a trust, retitle the assets into it and give your agent express trust powers if you want them used.
  9. Set online tool directions for email, cloud storage and social accounts.
  10. Estimate the Hawaii estate tax, which applies to property that skips probate.

Collect these documents in one place with the full planning document set.

After the Death: What Heirs Do Next

Property that passes outside probate still needs paperwork. A beneficiary of Land Court property files the petition for a new certificate of title, a POD payee presents proof of death at the bank, a brokerage reregisters TOD securities on proof of death, and a trustee administers the trust. Many heirs then sell. Tax basis, the personal representative's authority and title questions are covered on selling inherited property in Hawaii.

When to Call a Hawaii Attorney

Talk to a Hawaii estate planning attorney when:

  • Any parcel is Land Court property and you want the transfer mapped out.
  • You own land on more than one island or in another state.
  • Your estate may exceed the frozen Hawaii exclusion.
  • You want the tenancy-by-the-entirety creditor protection to follow real property into a trust under HRS 509-2(b).
  • A beneficiary receives public benefits, has creditor problems, or is a minor.
  • Your trust predates January 1, 2022.

Frequently Asked Questions

Does Hawaii have a transfer-on-death deed?

Yes. HRS chapter 527, the Uniform Real Property Transfer on Death Act, came in with Act 173 of 2011. HRS 527-5 lets an individual transfer property, effective at death, to one or more beneficiaries by a transfer on death deed. HRS 527-9 requires the deed to carry the elements of a recordable inter vivos deed, to state that the transfer occurs at the transferor's death, and to be recorded with the Bureau of Conveyances or filed with the assistant registrar of the Land Court before the transferor dies. Hawaii has one statewide recording office, so there is no county recorder to visit.

What extra step does Land Court property need?

A court petition after the death. HRS 527-5 makes any transfer of property registered in the Land Court subject to 527-13(a)(1), which says a petition noting the transferor's death and asking for a new certificate of title in the beneficiary's name shall be filed and processed with the Land Court before the interest transfers. The deed still avoids probate, but the beneficiary of registered land has one filing left to make.

Can a Hawaii will revoke a transfer-on-death deed?

No. HRS 527-11(a) lets only three instruments revoke a recorded or filed deed: a later transfer on death deed, an instrument of revocation, or an inter vivos deed that expressly revokes it. Each must be acknowledged after the deed it revokes and recorded or filed before the transferor dies. HRS 527-11(c) adds that burning, tearing or destroying the deed after recording revokes nothing.

Does a Hawaii TOD deed or living trust protect the property from creditors?

Not after death. HRS 527-15 lets the estate enforce an allowed claim or a statutory allowance to a surviving spouse or child against TOD deed property when the probate estate is short, within eighteen months of the death. HRS 554D-505(a)(3) makes property of a trust that was revocable at death answer for creditors, administration costs, funeral expenses and statutory allowances to the extent the probate estate cannot cover them.

Does avoiding probate avoid the Hawaii estate tax?

No. The Hawaii estate tax runs on the gross estate as defined in sections 2031 to 2046 of the Internal Revenue Code, which HRS 236E-2 adopts. Those sections include property in a revocable trust (26 U.S.C. 2038) and jointly held property (26 U.S.C. 2040). HRS 236E-6 then allows an exclusion pinned to federal law as it stood for a death on December 31, 2017, which is far below today's federal figure.

Can reciprocal beneficiaries hold Hawaii property as tenants by the entirety?

Yes. HRS 509-2(a) lets a person convey property to oneself and one's spouse or reciprocal beneficiary, and lets reciprocal beneficiaries convey to themselves, as tenants by the entirety. Survivorship carries the property to the surviving tenant without probate.

How much can pass by affidavit in Hawaii without probate?

Up to $100,000. HRS 560:3-1201 lets a successor collect personal property with a death certificate and an affidavit stating that the gross value of the decedent's estate in Hawaii does not exceed $100,000 and that no personal representative application is pending or granted. Motor vehicles registered to the decedent can transfer this way regardless of value. The section reaches personal property only, so it does not move a house.

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Information current as of September 24, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Hawaii can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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