Complex Will with Trust - Hawaii

LAST WILL AND TESTAMENT

OF [TESTATOR FULL LEGAL NAME]

WITH THE [TRUST NAME] TESTAMENTARY TRUST

State of Hawai‘i

DRAFTING AND SIGNING CHECKLIST

☐ Confirm the Testator's Hawai‘i domicile, family information, and prior estate-planning documents.

☐ Confirm beneficiary names, survival periods, distribution ages, contingent gifts, and the intended meaning of “by representation.”

☐ Coordinate beneficiary designations, jointly owned assets, transfer-on-death arrangements, and trust funding with this Will.

☐ Obtain tax advice for estate, generation-skipping, income-tax, and tax-apportionment provisions.

☐ If using a separate tangible-property list, make sure the Testator signs it and identifies the items and devisees with reasonable certainty as HRS § 560:2-513 requires.

☐ Execute this witnessed written Will under HRS § 560:2-502: the Testator signs, or directs another individual to sign in the Testator's conscious presence, and at least two witnesses each sign within a reasonable time after witnessing the signing or the Testator's acknowledgment of the signature or Will.

☐ Complete the optional self-proving affidavit substantially in the form prescribed by HRS § 560:2-504.

ARTICLE I — DECLARATIONS AND REVOCATION

1.1 Testator

I, [TESTATOR FULL LEGAL NAME], residing at [ADDRESS], [COUNTY], Hawai‘i, declare that I am at least eighteen years old, of sound mind, and making this instrument voluntarily as my Last Will and Testament (the “Will”).

1.2 Family Information

My marital status is: [MARRIED / UNMARRIED / DIVORCED / WIDOWED].

My spouse, if any, is [SPOUSE FULL LEGAL NAME].

My children are:

• [CHILD NAME], born [DATE];
• [CHILD NAME], born [DATE]; and
• [ADDITIONAL CHILDREN OR “NONE”].

References to my “descendants” include persons treated as my descendants under controlling law unless this Will expressly provides otherwise.

1.3 Revocation

I revoke all prior wills and codicils. This later Will is intended to effect that revocation under HRS § 560:2-507.

1.4 Survival Period

Unless this Will expressly provides otherwise, a beneficiary must survive me by thirty days to receive a gift. A beneficiary who does not satisfy that condition shall be treated for purposes of this Will as having predeceased me.

ARTICLE II — DEFINITIONS

“Court” means a Hawai‘i court having jurisdiction over the estate or Trust and proper venue under HRS §§ 560:1-302, 560:3-201, and 554D-204.

“HEMS” means health, education, maintenance, and support.

“Personal Representative” means the person appointed under Article III to administer my probate estate.

“Residue” means all property passing under this Will that is not effectively disposed of by another provision.

“Trust” means the [TRUST NAME] Testamentary Trust created under Article VII.

“Trustee” means the acting trustee of the Trust, including a duly appointed successor.

ARTICLE III — APPOINTMENT OF FIDUCIARIES

3.1 Personal Representative

I nominate [PRIMARY PERSONAL REPRESENTATIVE NAME AND ADDRESS] as Personal Representative. If that person does not qualify or ceases to serve, I nominate [SUCCESSOR PERSONAL REPRESENTATIVE NAME AND ADDRESS].

3.2 Personal-Representative Bond

I request that no bond be required of a Personal Representative nominated in this Will. This request is subject to HRS § 560:3-603 and any controlling court order.

3.3 Trustee

I appoint [PRIMARY TRUSTEE NAME AND ADDRESS] as Trustee. If that person does not accept or ceases to serve, I appoint [SUCCESSOR TRUSTEE NAME AND ADDRESS].

3.4 Trustee Bond

No Trustee shall be required by the terms of this Trust to give bond. This provision does not limit the Court's authority under HRS § 554D-105(b)(6) and § 554D-702.

3.5 Guardian Nomination

Under HRS § 560:5-202, I appoint [PRIMARY GUARDIAN NAME] as guardian for any minor child of mine. If that person cannot serve, I appoint [ALTERNATE GUARDIAN NAME]. Each appointment remains subject to the statutory acceptance, notice, confirmation, objection, and parental-rights provisions.

ARTICLE IV — DEBTS, EXPENSES, AND TAXES

4.1 Debts and Expenses

My Personal Representative shall pay from my probate estate my legally enforceable debts, funeral expenses, and estate-administration expenses.

4.2 Taxes

Except as another controlling instrument or mandatory law provides, all estate and generation-skipping transfer taxes attributable to property included in my taxable estate shall be paid from the Residue without apportionment. Hawai‘i counsel and tax counsel must review this direction for the Testator's assets and intended tax allocation.

ARTICLE V — TANGIBLE PERSONAL PROPERTY

5.1 Separate Written List

I may leave a written statement or list disposing of tangible personal property under HRS § 560:2-513. To be admissible under that section, the writing must be signed by me and describe the items and devisees with reasonable certainty. It may not be used to dispose of money.

5.2 Remaining Tangible Property

I give tangible personal property not effectively disposed of by a valid Section 5.1 writing to [PRIMARY TANGIBLE-PROPERTY BENEFICIARY], if that beneficiary survives me by thirty days. Otherwise, that property becomes part of the Residue.

5.3 Allocation and Sale

My Personal Representative may allocate items among eligible beneficiaries by agreement, lot, appraisal, or another reasonable method. The Personal Representative may sell an item when division or distribution is impracticable and add the net proceeds to the Residue, subject to HRS § 560:3-715 and controlling law.

ARTICLE VI — SPECIFIC GIFTS

6.1 Cash and Property Gifts

6.2 Failed Gifts

Unless this Will expressly provides another disposition or controlling law requires otherwise, a failed specific gift becomes part of the Residue.

ARTICLE VII — RESIDUE AND CREATION OF TESTAMENTARY TRUST

7.1 Gift of Residue

I give the Residue to the Trustee, in trust, to be held, administered, and distributed under this Will.

7.2 Trust Name

The trust created by this Article shall be known as the [TRUST NAME] Testamentary Trust.

7.3 Primary Beneficiary

During the lifetime of [PRIMARY BENEFICIARY NAME], the Trustee may distribute as much income and principal as the Trustee determines advisable for that beneficiary's HEMS, after considering other resources the Trustee knows are reasonably available.

7.4 Remainder at Primary Beneficiary's Death

At the primary beneficiary's death, the Trustee shall divide the remaining Trust property as follows:

• [PERCENTAGE]% to my descendants, by representation, subject to Section 7.5;
• [PERCENTAGE]% to [CONTINGENT BENEFICIARY]; and
• any unallocated remainder to [FINAL CONTINGENT BENEFICIARY OR CHARITY].

7.5 Continuing Shares

A share for a beneficiary younger than [FINAL DISTRIBUTION AGE] shall remain in a separate trust. The Trustee may distribute income and principal for that beneficiary's HEMS and shall distribute principal as follows:

• [FRACTION OR PERCENTAGE] at age [AGE 1];
• [FRACTION OR PERCENTAGE] of the remaining balance at age [AGE 2]; and
• the remaining balance at age [AGE 3].

7.6 Beneficiary Under Disability

If a distribution is payable to a beneficiary under a legal disability or whom the Trustee reasonably believes is incapacitated, the Trustee may use a payment method permitted by HRS § 554D-816(21).

7.7 Spendthrift Provision

Each beneficiary's interest is held subject to a spendthrift trust. Both voluntary and involuntary transfers of the beneficiary's interest are restrained to the extent permitted by HRS § 554D-502 and the exceptions in part V of chapter 554D.

7.8 Termination

The Trust terminates when its property has been fully distributed under this Article. The Trustee may make final distributions in cash or in kind and allocate particular assets on a reasonable valuation basis.

ARTICLE VIII — TRUST ADMINISTRATION

8.1 General and Specific Powers

Subject to the Trust's purposes and the Trustee's fiduciary duties, the Trustee may exercise the powers conferred by this Will and HRS §§ 554D-815 and 554D-816, including powers to retain, acquire, sell, exchange, lease, insure, repair, improve, and distribute Trust property; operate business interests; borrow and pledge Trust property; settle claims; employ professionals; make tax elections; and execute useful instruments.

8.2 Governing Fiduciary Standards

The Trustee shall administer the Trust in good faith, in accordance with its terms and purposes and the beneficiaries' interests, as HRS §§ 554D-105 and 554D-801 require. The Trustee shall comply with the duty of loyalty in HRS § 554D-802 and the prudent-administration standard in HRS § 554D-804.

8.3 Prudent Investment

The Trustee shall invest and manage Trust assets under HRS § 554D-902 by considering the Trust's purposes, terms, distribution requirements, and circumstances and exercising reasonable care, skill, and caution.

8.4 Delegation

The Trustee may delegate duties and powers only as permitted by HRS § 554D-807 and shall exercise the reasonable care, skill, and caution that section requires in selecting an agent, setting the delegation's scope and terms, and monitoring the agent's performance.

8.5 Information and Reports

The Trustee shall keep qualified beneficiaries reasonably informed and provide notices, information, and reports at the times and to the persons required by HRS § 554D-813. Required reports shall include the information specified by that section.

8.6 Resignation and Removal

A Trustee may resign by the notice or court-approval procedure in HRS § 554D-705. A person authorized by HRS § 554D-706 may request removal, and the Court may remove a Trustee on a ground stated in that section. The successor designated in Section 3.3 is nominated to serve when the prior Trustee ceases to serve.

8.7 Compensation and Expenses

The Trustee is entitled to compensation as provided by HRS § 554D-708. A Trustee acting in good faith is entitled to reimbursement from Trust property to the extent provided by HRS § 554D-709.

8.8 Trustee Liability

No provision of this Will relieves a Trustee from liability to an extent prohibited by HRS § 554D-1008, including a breach committed in bad faith or with reckless indifference to the Trust's purposes or the beneficiaries' interests. Personal liability arising from fiduciary contracts, torts, or ownership or control of Trust property is governed by HRS § 554D-1010. This Will creates no separate damages cap, force-majeure excuse, or broader immunity.

ARTICLE IX — GENERAL PROVISIONS

9.1 Governing Law and Court Proceedings

Hawai‘i law governs this Will and the Trust except when controlling law requires otherwise. Any court proceeding shall be brought in a court having jurisdiction and proper venue under applicable law, including HRS §§ 560:1-302, 560:3-201, and 554D-204. This Will does not impose an exclusive forum, mandatory arbitration, or a contractual jury waiver.

9.2 No-Contest Provision

If an interested person contests this Will or institutes another proceeding relating to my Estate without probable cause, any gift to that person under this Will is revoked and shall pass as if that person had predeceased me. Consistent with HRS § 560:2-517, this penalty is unenforceable when probable cause exists for instituting the proceeding.

9.3 Signing Method

This form is designed for execution as a witnessed written Will under HRS § 560:2-502. Do not substitute an electronic or remote signing process, or use duplicate signature pages, unless Hawai‘i counsel confirms that the proposed process satisfies current law.

9.4 Severability

If a provision of this Will is held invalid or unenforceable, the remaining provisions shall continue to the extent they can operate consistently with my testamentary plan.

9.5 Headings and References

Headings are for convenience only. References to a statute include its valid successor provision when appropriate.

EXECUTION AND ATTESTATION

I, [TESTATOR FULL LEGAL NAME], sign this written instrument as my Last Will and Testament on [DATE].

__________________________________
[TESTATOR FULL LEGAL NAME], Testator

WITNESS ATTESTATION

We, the undersigned witnesses, each sign within a reasonable time after witnessing the Testator sign this Will or acknowledge the Testator's signature or this Will. The Testator declared this instrument to be the Testator's Last Will and Testament.

OPTIONAL AFTER-EXECUTION SELF-PROVING AFFIDAVIT

This form tracks HRS § 560:2-504(b). The Testator and both witnesses must make the acknowledgment and affidavits before an officer authorized to administer oaths, evidenced by the officer's certificate under official seal.

The State of Hawai‘i

County of [COUNTY]

We, [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], the Testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, declare to the undersigned authority that the Testator signed and executed the instrument as the Testator's Will and that the Testator had signed willingly (or willingly directed another to sign for the Testator), and that the Testator executed it as the Testator's free and voluntary act for the purposes expressed in it, and that each witness, in the presence and hearing of the Testator, signed the Will as witness and that to the best of the witness's knowledge the Testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.

__________________________________
[TESTATOR NAME], Testator

__________________________________
[WITNESS 1 NAME], Witness

__________________________________
[WITNESS 2 NAME], Witness

Subscribed, sworn to, and acknowledged before me by [TESTATOR NAME], the Testator, and subscribed and sworn to before me by [WITNESS 1 NAME] and [WITNESS 2 NAME], witnesses, this [DAY] day of [MONTH], [YEAR].

[OFFICIAL SEAL]

__________________________________
[SIGNATURE OF OFFICER]

__________________________________
[OFFICIAL CAPACITY OF OFFICER]

SOURCES AND REFERENCES

• HRS § 560:2-501 — Who may make will
• HRS § 560:2-502 — Execution; witnessed wills; holographic wills
• HRS § 560:2-504 — Self-proved will
• HRS § 560:2-507 — Revocation by writing or act
• HRS § 560:2-513 — Separate tangible-property writing
• HRS § 560:2-517 — Penalty clause for contest
• HRS § 560:1-302 — Subject-matter jurisdiction
• HRS § 560:3-201 — Probate venue
• HRS § 560:3-303 — Informal probate proof
• HRS § 560:3-406 — Contested execution proof
• HRS § 560:3-603 — Personal-representative bond
• HRS § 560:3-715 — Personal-representative transactions
• HRS § 560:5-202 — Parental appointment of guardian
• HRS § 554D-105 — Default and mandatory trust rules
• HRS § 554D-204 — Trust venue
• HRS § 554D-502 — Spendthrift provision
• HRS §§ 554D-702 and 554D-705 to 554D-709 — Trustee bond, resignation, removal, compensation, and expenses
• HRS §§ 554D-801 to 554D-816 — Trustee duties and powers
• HRS § 554D-902 — Prudent-investor standard
• HRS §§ 554D-1008 and 554D-1010 — Trustee exculpation and personal liability