Hawaii Personal Representative Bond: A Comprehensive Guide
At a Glance:
- Average Cost: Calculated based on a tiered structure
- Bond Amount: Determined on a case-by-case basis (more on this later)
- Who Needs it: Certain personal representatives handling the estates of deceased Hawaii residents or property owners
- Purpose: To ensure estate beneficiaries and creditors receive compensation if the personal representative mishandles the estate’s assets
- Who Regulates Personal Representatives in Hawaii: The circuit court with jurisdiction over where the deceased individual resided or had property
Hawaii Statute 560:3-103 requires all personal representatives of an estate to be appointed by a court before assuming their fiduciary duties. The Hawaii legislature enacted the appointment requirement to ensure that personal representatives do not mismanage the estate’s assets. To provide financial security for the enforcement of this requirement, the court may require the personal representative to purchase a probate surety bond to be eligible for appointment.
What is the Purpose of the Hawaii Personal Representative Bond?
Hawaii requires personal representatives to purchase a surety bond as a prerequisite to being appointed as a fiduciary over an estate’s assets. The bond ensures that the estate’s beneficiaries and creditors will receive compensation for financial harm if the personal representative fails to abide by the regulations outlined in Hawaii Statute 560:3-606. Specifically, the bond protects beneficiaries and creditors if the personal representative engages in acts of fraud or mismanages the estate’s assets. In short, the bond is a type of insurance that protects the estate’s beneficiaries and creditors if the personal representative violates their fiduciary duties.
How Can an Insurance Agent Obtain a Hawaii Personal Representative Surety Bond?
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How is the Bond Amount Determined?
Hawaii Statute 560:3-604 dictates that the bond must be in the amount specified in the will. If no bond amount was specified in the will, then the bond must be equal to the personal representative’s best estimation of the value of the estate’s personal property plus the estimated income the estate’s real estate will generate over the next year. The bond amount may be reduced by the value of all of the estate’s assets deposited with a domestic financial institution that prevents their unauthorized disposition.
Any interested person, including the personal representative, may petition the court to increase or reduce the required bond amount.
What are the Underwriting Requirements for the Hawaii Personal Representative Bond?
Most surety companies will examine the following factors when determining eligibility for the Hawaii Personal Representative bond:
- Personal representative’s credit history (not considered for bonds with limits less than $25,000)
- Whether or not the estate has an attorney (not considered for bonds with limits less than $25,000)
- How long the fiduciary appointment is for
- Whether or not the personal representative is replacing a prior fiduciary
- If the personal representative has ever committed a felony
- If there are disputes among the estate’s beneficiaries
- Whether or not there is any ongoing business in the estate
- If the bond is being required by a creditor
How Much Does the Hawaii Personal Representative Bond Cost?
Surety companies typically determine the premium rate for personal representative bonds based on a tiered structure. As a result, larger bond amounts will be charged a lower premium rate than smaller bonds.
The following table illustrates the pricing structure for the Hawaii Personal Representative bond:
$1,500,000 Personal Representative Bond Cost
|Total Bond Cost
|Total cost of $4,715
Who is Required to Purchase the Hawaii Personal Representative Bond?
Hawaii requires personal representatives to purchase a surety bond as a prerequisite to obtaining a fiduciary appointment in the following situations:
- If a special administrator is appointed and an interested person requests they obtain a bond
- The will explicitly requests the personal representative be bonded
- If any interested person of an estate worth more than $1,000, or any creditor with at least a $1,000 claim against the estate, submits a written demand to the court that the personal representative obtain a bond
Any interested person, including the personal representative, may petition the court to waive the bond requirement.
To paraphrase Hawaii Statute 560:1-201, a personal representative is a court-appointed fiduciary responsible for administering a deceased individual’s estate. Personal representatives are referred to as executors if the deceased individual nominated them in their will (testate), or administrators if they were not nominated if no will exists (intestate). Additionally, “special administrator” refers to a personal representative appointed by the court to oversee the estate prior to the appointment of a general personal representative or in cases where a general personal representative cannot and/or should not act.
How do Personal Representatives Become Appointed in Hawaii?
Personal representatives in Hawaii must navigate several steps to become court-appointed fiduciaries. Below are the general guidelines, but applicants should refer to Hawaii’s probate statutes for details on the process.
Step 1 – Meet the Qualifications
Personal representatives are ineligible for appointment if they are:
- Under 18
- Deemed unsuitable by the court
Step 2 – Determine Priority
Priority to serve as a personal representative shall be granted in the following order:
- To persons nominated in the will
- The surviving spouse or reciprocal beneficiary of the deceased individual, provided they are entitled to all or some of the estate’s real property.
- Any other person entitled to all or some of the estate’s real property
- The surviving spouse or reciprocal beneficiary of the deceased individual
- Any other heirs
- Any creditor, provided the deceased individual has been dead for at least 45 days
In the event an interested person successfully objects to a personal representative’s appointment, the order of priority still stands except in the following instances:
- If the estate appears able to meet the exemptions and costs of administration but unable to discharge unsecured claims, the court may appoint any qualified person following a petition by creditors
- If an objection is made to the appointment of a personal representative (that is not nominated in the will) by an heir or devisee (person entitled to real property of the estate) with a substantial interest in the estate, the court may appoint any person that is acceptable to all heirs and devisees and who is entitled to more than half of the estate’s distributable value. If no such person exists, then the court may appoint any qualified person.
Step 3 – Hire an Attorney
Although not explicitly required, it is highly recommended that personal representatives hire an attorney to assist with the probate process.
Step 4 – Determine the Estate Administration Type
Hawaii has three distinct estate administration types, as outlined below:
- Small Estate: Available to estates worth less than $100,000. Small estate administration can be commenced simply by filing an affidavit with the court, and personal representatives may distribute property without court supervision.
- Informal Probate: Personal representatives are able to distribute the estate’s property without litigation and with minimal court supervision.
- Formal Testacy: Litigation to determine the validity of a will and/or appoint a personal representative. An interested person must petition the court to commence formal testacy.
Step 5 – Contact the Court
Personal representatives must contact the circuit court with jurisdiction over the deceased individual’s estate. A representative of the court will walk the personal representative through the appointment process, provide them with all required forms, and answer any questions they may have.
Step 6 – Purchase a Surety Bond
Unless otherwise exempt, personal representatives must purchase and maintain a surety bond (limits outlined above).
How do Hawaii Personal Representatives File Their Bonds?
Personal representatives should submit their completed bond forms, including the power of attorney, to the circuit court with jurisdiction over the estate.
The surety bond requires signatures from the company that issues the bond and the personal representative. The surety company should include the following information on the bond form:
- Court where the bond is to be filed
- Legal name of the entity/individual(s) buying the bond
- Surety company’s name and state of incorporation
- Bond amount
- Date the bond is signed
- Date the personal representative was appointed
What can Hawaii Personal Representatives do to Avoid Claims Made Against Their Bonds?
To avoid claims against their bonds, personal representatives in Hawaii must ensure that they:
- Do not engage in any acts of fraud
- Do not mismanage the estate’s assets
- Fulfill their fiduciary duties