LEGAL GUIDE
Written by attorney Darl C. Gleed | Sep 14, 2013

SMALL ESTATES - USE OF AFFIDAVIT OF COLLECTION IN HAWAII

Let's say a person dies in Hawaii and that person has only a $50,000 bank account in his or her sole name. Will a court probate or intestate administration need to be pursued to obtain those funds?

The answer is generally "no." This is because there is a threshold before court administration of an estate will apply in Hawaii. That threshold is $100,000, assuming there is no real estate held in the person's name. This figure is a aggregate figure, meaning that if all of the various accounts and assets (whether in Hawaii or elsewhere) add up to more than $100,000, probate will be required.

Hawaii Revised Statutes Section 560:3-1201 & 1201 provide that assets under the threshold may be claimed by a "successor." Typically, a successor is a surviving spouse, child, or the person designated in the will to act as Personal Representative if a probate were required.

To obtain the assets, the successor must execute an affidavit, typically called an Affidavit of Collection, certifying that the person is entitled to receive the assets and that the gross value of the deceased person's assets that would be subject to probate otherwise do not exceed the $100,000 threshold. Also, there cannot be any probate filed or pending in Hawaii or any other state.

This type of affidavit is often used to transfer an auto with the Department of Motor Vehicles in Hawaii, and the Department provides its own form of the Affidavit that is available online.

An Affidavit may also prove useful to collect small life insurance policies where the insurance company is requesting "letters testamentary" or "letters of administration." A letter of explanation accompanying the affidavit will typically suffice.

A bank or other holder of assets may rely upon the affidavit of the successor and need not investigate further. However, the successor receiving the property is accountable to anyone who may have a superior right to the assets.

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