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'560:2-206
Decedent's nonprobate transfers to the surviving spouse or reciprocal beneficiary.

    Excluding property passing to the surviving spouse or reciprocal beneficiary under the federal social security system, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse or reciprocal beneficiary, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse or reciprocal beneficiary by reason of the decedent's death, including:

  1. The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse or reciprocal beneficiary as surviving joint tenant;
  2. The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse or reciprocal beneficiary as surviving co-owner; and
  3. All other property that would have been included in the augmented estate under section 560:2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse or reciprocal beneficiary, surviving spouse or reciprocal beneficiary, the decedent, or the decedent's creditors, estate or estate creditors.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-207
Surviving spouse's or reciprocal beneficiary's property and nonprobate transfers to others.

    (a) Included property. Except to the extent included in the augmented estate under section 560:2-204 or 560:2-206, the value of the augmented estate includes the value of:

  1. Property that was owned by the decedent's surviving spouse or reciprocal beneficiary at the decedent's death, including:
    1. The surviving spouse's or reciprocal beneficiary's fractional interest in property held in joint tenancy with the right of survivorship;
    2. The surviving spouse's or reciprocal beneficiary's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
    3. Property that passed to the surviving spouse or reciprocal beneficiary by reason of the decedent's death, but not including the spouse's or reciprocal beneficiary's right to homestead allowance, family allowance, exempt property, or payments under the federal social security system; and
  2. Property that would have been included in the surviving spouse's or reciprocal beneficiary's nonprobate transfers to others, other than the spouse's or reciprocal beneficiary's fractional and ownership interest included under subsection (a)(1)(A) or (B), had the spouse or reciprocal beneficiary been the decedent.

    (b) Time of valuation. Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse or reciprocal beneficiary into account, but, for purposes of subsection (a)(1)(A) and (B), the values of the spouse's or reciprocal beneficiary's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co- owner of the property or accounts. For purposes of subsection (a)(2), proceeds of insurance that would have been included in the spouse's or reciprocal beneficiary's nonprobate transfers to others under section 560:2-205(1)(D) are not valued as if the spouse or reciprocal beneficiary were deceased.

    (c) Reduction for enforceable claims. The value of property included under this section is reduced by enforceable claims against the surviving spouse or reciprocal beneficiary.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-208
Exclusions, valuation, and overlapping application.

    (a) Exclusions:

  1. The value of any property is excluded from the decedent's nonprobate transfers to others:
    1. To the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or
    2. If the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse or reciprocal beneficiary.
  2. The augmented estate shall not include the value of any property that either:
    1. Is held in a trust created and funded by any party other than the decedent, the surviving spouse, or the reciprocal beneficiary; or
    2. Was received by either spouse during marriage or either reciprocal beneficiary during a reciprocal beneficiary relationship, by gift, devise, inheritance or distribution from a trust created and funded by any party other than the decedent, the surviving spouse, or the reciprocal beneficiary; provided that such property was kept segregated from property includible in the augmented estate.

    (b) Valuation. The value of property:

  1. Included in the augmented estate under section 560:2-205, 560:2-206, or 560:2-207 is reduced in each category by enforceable claims against the included property; and
  2. Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system.

    (c) Overlapping application; no double inclusion. In case of overlapping application to the same property of the paragraphs or subparagraphs of section 560:2-205, 560:2-206, or 560:2-207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '13]

'560:2-209
Sources from which elective share payable.

    (a) In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:

  1. Amounts included in the augmented estate under section 560:2-204 which pass or have passed to the surviving spouse or reciprocal beneficiary by testate or intestate succession and amounts included in the augmented estate under section 560:2-206; and
  2. Amounts included in the augmented estate under section 560:2-207 up to the applicable percentage thereof. For the purposes of this subsection, the "applicable percentage" is twice the elective-share percentage set forth in the schedule in section 560:2-202(a) appropriate to the length of time:
    1. The spouse and the decedent were married to each other; or
    2. The reciprocal beneficiary and the decedent were in a reciprocal beneficiary relationship.

    (b) If, after the application of subsection (a), the elective-share amount is not fully satisfied or the surviving spouse or reciprocal beneficiary is entitled to a supplemental elective-share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under section 560:2-205(3)(A) or (C), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

    (c) If, after the application of subsections (a) and (b), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of the remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '14]

'560:2-210
Personal liability of recipients.

    (a) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's or reciprocal beneficiary's elective-share or supplemental elective- share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's nonprobate transfers to the person or to pay the value of the amount for which he or she is liable.

    (b) If any section or part of any section of this part is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in section 560:2-209, to the person who would have been entitled to it were that section or part of that section not preempted.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-211
Proceeding for elective share; time limit.

    (a) Except as provided in subsection (b), the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within six months after the probate of the decedent's will, whichever limitation later expires. Except as provided in subsection (b), the decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective-share, if the petition is filed more than nine months after the decedent's death.

    (b) Within nine months after the decedent's death, the surviving spouse or reciprocal beneficiary may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse or reciprocal beneficiary gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court for cause shown by the surviving spouse or reciprocal beneficiary may extend the time for election. If the court grants the spouse's or reciprocal beneficiary's petition for an extension, the decedent's nonprobate transfers to others are not excluded from the augmented estate for the purpose of computing the elective-share and supplemental elective-share amounts, if the spouse or reciprocal beneficiary makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.

    (c) The surviving spouse or reciprocal beneficiary must give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

    (d) The surviving spouse or reciprocal beneficiary may withdraw the spouse's or reciprocal beneficiary's demand for an elective share at any time before entry of a final determination by the court.

    (e) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 560:2-209 and 560:2-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under sections 560:2-209 and 560:2-210 had relief been secured against all persons subject to contribution.

    (f) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this State or other jurisdictions.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-212
Right of election personal to surviving spouse or reciprocal beneficiary; incapacitated surviving spouse or reciprocal beneficiary.

    (a) Surviving spouse or reciprocal beneficiary must be living at time of election. The right of election may be exercised only by a surviving spouse or reciprocal beneficiary who is living when the petition for the elective share is filed in the court under section 560:2-211(a). If the election is not exercised by the surviving spouse or reciprocal beneficiary personally, it may be exercised on the surviving spouse's or reciprocal beneficiary's behalf by the spouse's or reciprocal beneficiary's conservator, guardian, or agent under the authority of a power of attorney.

    (b) Incapacitated surviving spouse or reciprocal beneficiary. If the election is exercised on behalf of a surviving spouse or reciprocal beneficiary who is an incapacitated person, that portion of the elective-share and supplemental elective-share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under section 560:2-209(b) and (c) must be placed in a custodial trust for the benefit of the surviving spouse or reciprocal beneficiary under chapter 554B, except as modified below. For the purposes of this subsection, an election on behalf of a surviving spouse or reciprocal beneficiary by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse or reciprocal beneficiary who is an incapacitated person. For purposes of the custodial trust established by this subsection:

  1. The electing guardian, conservator, or agent is the custodial trustee;
  2. The surviving spouse or reciprocal beneficiary is the beneficiary; and
  3. The custodial trust is deemed to have been created by the decedent spouse or reciprocal beneficiary by written transfer that takes effect at the decedent spouse's or reciprocal beneficiary's death and that directs the custodial trustee to administer the custodial trust as one created for the benefit of an incapacitated beneficiary.

    (c) Custodial trust. For purposes of subsection (b), chapter 554B must be applied as if section 554B-6(b) thereof were repealed and sections 554B-2(e), 554B-9(b), and 554B-17(a) were amended to read as follows:

  1. Neither an incapacitated beneficiary nor anyone acting on behalf of an incapacitated beneficiary has a power to terminate the custodial trust; but if the beneficiary regains capacity, the beneficiary then acquires the power to terminate the custodial trust by delivering to the custodial trustee a writing signed by the beneficiary declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary;
  2. If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the health, education, maintenance and support of the beneficiary and individuals who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order but with regard to other support, income, and property of the beneficiary and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need; provided that the custodial trustee shall not make any distributions of the principal of the custodial trust unless the custodial trustee determines, in the trustee's discretion, that the remaining assets of the surviving spouse or reciprocal beneficiary cannot or should not be first used instead for the spouse's or reciprocal beneficiary's benefit. The custodial trustee may make such a determination when, for example, the sole remaining asset of the surviving spouse or reciprocal beneficiary is the spouse's or reciprocal beneficiary's residence, or similar factors would exist that would make use or liquidation of the surviving spouse's or reciprocal beneficiary's own assets inappropriate;
  3. Upon the beneficiary's death, the custodial trustee shall transfer the unexpended custodial trust property in the following order:
    1. Under the residuary clause, if any, of the will of the beneficiary's predeceased spouse or reciprocal beneficiary against whom the elective share was taken, as if that predeceased spouse or reciprocal beneficiary died immediately after the beneficiary; or
    2. To that predeceased spouse's or reciprocal beneficiary's heirs under section 560:2-711.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-213
Waiver of right to elect and of other rights.

    (a) The right of election of a surviving spouse or reciprocal beneficiary and the rights of the surviving spouse or reciprocal beneficiary to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse or reciprocal beneficiary.

    (b) A surviving spouse's or reciprocal beneficiary's waiver is not enforceable if the surviving spouse or reciprocal beneficiary proves that:

  1. The surviving spouse or reciprocal beneficiary did not execute the waiver voluntarily; or
  2. The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse or reciprocal beneficiary:
    1. Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
    2. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
    3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

    (c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.

    (d) Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or reciprocal beneficiary or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse or reciprocal beneficiary in the property of the other and a renunciation by each of all benefits that would otherwise pass to the spouse or reciprocal beneficiary from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-214
Protection of payors and other third parties.

    (a) Although under section 560:2-205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or reciprocal beneficiary or spouse's or reciprocal beneficiary's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.

    (b) A written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction or probate proceedings relating to decedents' estates located in the judicial circuit of the decedent's residence. The court shall hold the funds or item of property, and, upon its determination under section 560:2-211(d), shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under section 560:2-211(a) or, if filed, the demand for an elective share is withdrawn under section 560:2-211(d), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.

    (c) Upon petition to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this part.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@ (continued)]]
[[Part III, ASpouse and Children Unprovided For in Wills@]]

'560:2-301
Entitlement of spouse or reciprocal beneficiary; premarital will.

    (a) If a testator's surviving spouse married the testator, or the testator's reciprocal beneficiary entered into a reciprocal beneficiary relationship with the testator, after the testator executed the testator's will, the surviving spouse or reciprocal beneficiary is entitled to receive, as an intestate share, no less than the value of the share of the estate the spouse or reciprocal beneficiary would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse or entered into a reciprocal beneficiary relationship with the surviving reciprocal beneficiary and who is not a child of the surviving spouse or reciprocal beneficiary, nor is devised to a descendant of such a child or passes under section 560:2-603 or 560:2-604 to such a child or to a descendant of such a child, unless:

  1. It appears from the will or other evidence that the will was made in contemplation of:
    1. The testator's marriage to the surviving spouse; or
    2. The testator's entering into a reciprocal beneficiary relationship with the reciprocal beneficiary;
  2. The will expresses the intention that it is to be effective notwithstanding any subsequent marriage, or reciprocal beneficiary relationship; or
  3. The testator provided for the spouse or reciprocal beneficiary by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

    (b) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, or reciprocal beneficiary, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse, or entered a reciprocal beneficiary relationship with the reciprocal beneficiary, and who is not a child of the surviving spouse or reciprocal beneficiary, or a devise or substitute gift under section 560:2-603 or 560:2-604 to a descendant of such a child, abate as provided in section 560:3-902.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '15]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@ (continued)]]
[[Part IV, AExempt Property and Allowances@]]

'560:2-402
Homestead allowance.

    A decedent's surviving spouse or reciprocal beneficiary is entitled to a homestead allowance of $15,000. If there is no surviving spouse or reciprocal beneficiary, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $15,000 divided by the number of minor and dependent children of the decedent.

    The homestead allowance is exempt from and has priority over all claims against the estate.

    Homestead allowance is in addition to any share passing to the surviving spouse or reciprocal beneficiary or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Rules of Court

Distribution, see HPR rule 90(a).

'560:2-403
Exempt property.

    In addition to the homestead allowance, the decedent's surviving spouse or reciprocal beneficiary is entitled from the estate to a value, not exceeding $10,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects.

    If there is no surviving spouse or reciprocal beneficiary, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $10,000 or if there is not $10,000 worth of exempt property in the estate, the spouse, reciprocal beneficiary, or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $10,000 value.

    Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of homestead allowance and family allowance.

    These rights are in addition to any benefit or share passing to the surviving spouse, reciprocal beneficiary, or children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective share.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Rules of Court

Distribution, see HPR rule 90(a).

'560:2-404
Family allowance.

    (a) In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse or reciprocal beneficiary and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse or reciprocal beneficiary, if living, for the use of the surviving spouse or reciprocal beneficiary and minor and dependent children; otherwise to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse or reciprocal beneficiary, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse or reciprocal beneficiary, as their needs may appear. The family allowance is exempt from and has priority over all claims except the homestead allowance.

    (b) The family allowance is not chargeable against any benefit or share passing to the surviving spouse, reciprocal beneficiary, or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates the right to allowances not yet paid.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Rules of Court

Distribution, see HPR rule 90(b).

'560:2-405
Source, determination, and documentation.

    (a) If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to homestead allowance or exempt property. Subject to this restriction, the surviving spouse or reciprocal beneficiary, guardians of minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make those selections if the surviving spouse or reciprocal beneficiary, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding $18,000 or periodic installments not exceeding $1,500 per month for one year, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined.

    (b) If the right to an elective share is exercised on behalf of a surviving spouse or reciprocal beneficiary who is an incapacitated person, the personal representative may add any unexpended portions payable under the homestead allowance, exempt property, and family allowance to the trust established under section 560:2-212(b).

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@ (continued)]]
[[Part VII, ARules of Construction Applicable to
Wills and Other Governing Instruments@]]

'560:2-705
Class gifts construed to accord with intestate succession.

    (a) Adopted individuals and individuals born out of wedlock, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by blood from those by affinity, such as "uncles", "aunts", "nieces", or "nephews", are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as "brothers", "sisters", "nieces", or "nephews", are construed to include both types of relationships.

    (b) In addition to the requirements of subsection (a), in construing a dispositive provision of a transferor who is not the natural parent, an individual born to the natural parent is not considered the child of that parent unless the individual lived while a minor as a regular member of the household of that natural parent or of that parent's parent, brother, sister, spouse or reciprocal beneficiary, or surviving spouse or reciprocal beneficiary.

    (c) In addition to the requirements of subsection (a), in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-711
Interest in "heirs" and like.

    If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives", or "family", or language of similar import, the property passes to those persons, including the State, and in such shares as would succeed to the designated individual's intestate estate under the intestate succession law of the designated individual's domicile if the designated individual died when the disposition is to take effect in possession or enjoyment.

    If the designated individual's surviving spouse or reciprocal beneficiary is living but is remarried or has terminated the reciprocal beneficiary relationship at the time the disposition is to take effect in possession or enjoyment, the surviving spouse or reciprocal beneficiary is not an heir of the designated individual.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '16]

[[annotations:]]
Cross References

Effect and transition of L 1996, c 288 amendments, see '560:8-201.

Rules of Court
Determination of heirs, see HPR rule 73.

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@ (continued)]]
[[Part VIII, AGeneral Provisions Concerning Probate and Nonprobate Transfers@]]

'560:2-802
Effect of divorce, annulment, decree of separation, and termination of reciprocal beneficiary relationship.

    (a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section. An individual who has terminated a reciprocal beneficiary relationship with the decedent is not deemed a surviving reciprocal beneficiary unless, by virtue of a subsequent registration as a reciprocal beneficiary, the individual is the reciprocal beneficiary of the decedent at the time of death.

    (b) For purposes of parts 1, 2, 3, and 4 of this article, and of section 560:3-203, a surviving spouse or reciprocal beneficiary does not include:

  1. An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
  2. An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual;
  3. An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights; or
  4. An individual who does not have a certificate of reciprocal beneficiary relationship declaring the decedent as their reciprocal beneficiary or the relationship has been terminated under chapter 572C or otherwise.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '17]

'560:2-803
Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations.

    (a) Definitions. In this section:

    "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.

    AGoverning instrument" means a governing instrument executed by the decedent.

    ARevocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate the decedent's self in place of the decedent's killer and whether or not the decedent then had capacity to exercise the power.

    (b) Forfeiture of statutory benefits. An individual who feloniously and intentionally kills the decedent forfeits all benefits under this article with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's, reciprocal beneficiary's, or child's share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share.

    (c) Revocation of benefits under governing instruments. The felonious and intentional killing of the decedent:

  1. Revokes any revocable:
    1. Disposition or appointment of property made by the decedent to the killer in a governing instrument;
    2. Provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and
    3. Nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and
  2. Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common.

    (d) Effect of severance. A severance under subsection (c)(2) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

    (e) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.

    (f) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from the killer's wrong.

    (g) Felonious and intentional killing; how determined. After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section. In the absence of a conviction, the court, upon the petition of an interested person, must determine whether, under the preponderance of evidence standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section.

    (h) Protection of payors and other third parties.

  1. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing, or for having taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice of a claimed forfeiture or revocation under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section;
  2. Written notice of a claimed forfeiture or revocation under paragraph (1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the judicial circuit of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

    (i) Protection of bona fide purchasers; personal liability of recipient.

  1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section;
  2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-804
Revocation of probate and nonprobate transfers by divorce or termination of reciprocal beneficiary relationship; no revocation by other changes of circumstances.

    (a) Definitions. In this section:

    "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.

    ADivorce or annulment" means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 560:2-802. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.

    ADivorced individual" includes an individual whose marriage has been annulled.

    AGoverning instrument" means a governing instrument executed by:

  1. A divorced individual before the divorce or annulment of the individual's marriage to the individual's former spouse; or
  2. An individual who is a former reciprocal beneficiary before the termination of the reciprocal beneficiary relationship with the individual's former reciprocal beneficiary.

    ARelative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.

    ARevocable", with respect to a disposition, appointment, provision, or nomination, means one under which:

  1. The divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the individual's former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate the individual's self in place of the individual's former spouse or in place of the individual's former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power; or
  2. An individual who is a former reciprocal beneficiary, at the time of the termination, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the individual's former partner or former partner's relative, whether or not the individual was then empowered to designate the individual's self in place of the individual's former partner or in place of the individual's former partner's relative and whether or not the individual who is the former reciprocal beneficiary then had the capacity to exercise the power.

    ATermination" means the dissolution of a reciprocal beneficiary relationship under chapter 572C between two adults.

    (b) Revocation upon divorce or termination. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the estate made between the divorced individuals before or after the marriage, divorce, annulment, between two former reciprocal beneficiaries before the termination of a reciprocal beneficiary relationship, the divorce or annulment of a marriage or the termination of a reciprocal beneficiary relationship:

  1. Revokes any revocable:
    1. Disposition or appointment of property made by a divorced individual or a former reciprocal beneficiary to the individual's former spouse or reciprocal beneficiary in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse or reciprocal beneficiary;
    2. Provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or an individual's former reciprocal beneficiary or on a relative of the divorced individual's former spouse or an individual's former reciprocal beneficiary; and
    3. Nomination in a governing instrument, nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse or an individual's former reciprocal beneficiary or a relative of the former reciprocal beneficiary to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
  2. Severs the interests of the former spouses or reciprocal beneficiaries in property held by them at the time of the divorce, annulment, or termination, as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the former spouses or reciprocal beneficiaries into tenancies in common.

    (c) Effect of severance. A severance under subsection (b)(2) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses or reciprocal beneficiaries unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

    (d) Effect of revocation. Provisions of a governing instrument are given effect as if the former spouse or reciprocal beneficiary and relatives of the former spouse or reciprocal beneficiary disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse or reciprocal beneficiary and relatives of the former spouse or reciprocal beneficiary died immediately before the divorce, annulment, or termination.

    (e) Revival if divorce nullified or reciprocal beneficiary relationship re-registered. Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment. Provisions revoked solely by this section are revived by an individual's re-registering a reciprocal beneficiary relationship to the former reciprocal beneficiary.

    (f) No revocation for other change of circumstances. No change of circumstances other than as described in this section and in section 560:2-803 effects a revocation.

    (g) Protection of payors and other third parties.

  1. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, remarriage, termination, or re-registration of a reciprocal beneficiary relationship, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, remarriage, termination, or re- registration of a reciprocal beneficiary relationship. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section;
  2. Written notice of the divorce, annulment, remarriage, termination, or re-registration of a reciprocal beneficiary relationship under this subsection must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, remarriage, termination, or re-registration of a reciprocal beneficiary relationship, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the judicial circuit of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

    (h) Protection of bona fide purchasers; personal liability of recipient.

  1. A person who purchases property from a former spouse, former reciprocal beneficiary, relative of a former spouse or reciprocal beneficiary, or any other person for value and without notice, or who receives from a former spouse, a former reciprocal beneficiary, relative of a former spouse or reciprocal beneficiary, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, former reciprocal beneficiary, relative of a former spouse or reciprocal beneficiary, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section;
  2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, former reciprocal beneficiary, relative of the former spouse or reciprocal beneficiary, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '18]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@]]
[[Part II, AVenue for Probate and Administration;
Priority to Administer; Demand for Notice@]]

'560:3-203
Priority among persons seeking appointment as personal representative.

    (a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

  1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will;
  2. The surviving spouse or reciprocal beneficiary of the decedent who is a devisee of the decedent;
  3. Other devisees of the decedent;
  4. The surviving spouse or reciprocal beneficiary of the decedent;
  5. Other heirs of the decedent; and
  6. Forty-five days after the death of the decedent, any creditor.

    (b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (a) apply except that:

  1. If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
  2. In case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord any suitable person.

    (c) A person entitled to letters under subsection (a)(2) to (5), and a person aged eighteen and over who would be entitled to letters but for the person's age, may nominate a qualified person to act as personal representative. Any person aged eighteen and over may renounce the person's right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.

    (d) Conservators or guardians of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.

    (e) Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.

    (f) No person is qualified to serve as a personal representative who is:

  1. An individual under the age of eighteen; or
  2. A person whom the court finds unsuitable in formal proceedings.

    (g) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this State and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

    (h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

    [L 1996, c 288, pt of '1; am L 1997, c 244, '3 and c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@ (continued)]]
[[Part III, AInformal Probate and Appointment Proceedings@]]

'560:3-301
Informal probate or appointment proceedings; application; contents.

    (a) Applications for informal probate or informal appointment shall be directed to the registrar, and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief as to the following information:

  1. Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
    1. A statement of the interest of the applicant, together with the name, address, and telephone number of the applicant;
    2. The name, and date of death of the decedent, the decedent's age, and the county and state of the decedent's domicile at the time of death, and the names and addresses of the spouse or reciprocal beneficiary, children, heirs, and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;
    3. If the decedent was not domiciled in the State at the time of the decedent's death, a statement showing venue;
    4. A statement identifying and indicating the address of any personal representative of the decedent appointed in this State or elsewhere whose appointment has not been terminated;
    5. A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this State or elsewhere; and
    6. That the time limit for informal probate or appointment as provided in this article has not expired either because five years or less have passed since the decedent's death, or, if more than five years from death have passed, circumstances as described by section 560:3-108 authorizing tardy probate or appointment have occurred;
  2. An application for informal probate of a will shall state the following in addition to the statements required by paragraph (1):
    1. That the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application;
    2. That the applicant, to the best of applicant's knowledge, believes the will to have been validly executed; and
    3. That after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will;
  3. An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought;
  4. An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by paragraph (1):
    1. That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this State under section 560:1-301, or, a statement why any such instrument of which the applicant may be aware is not being probated; and
    2. The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under section 560:3-203;
  5. An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant;
  6. An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in 560:3-610(c), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.

    (b) By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against the applicant.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Rules of Court

Pleadings, see Hawaii Probate Rules, part A(II); HPR rules 17, 50.

'560:3-302
Informal probate; duty of registrar; effect of informal probate.

    (a) Upon receipt of an application requesting informal probate of a will filed by a corporate fiduciary, by a parent, spouse, or reciprocal beneficiary of the decedent, or by a descendant of a parent of the decedent, the registrar, upon making the findings required by section 560:3-303, shall issue a written statement of informal probate appointing a personal representative subject to qualification and acceptance, if at least one hundred twenty hours have elapsed since the decedent's death.

    (b) Upon receipt of an application requesting informal probate of a will filed by someone other than as enumerated in subsection (a), the registrar shall set a date which shall be the earliest by which the registrar will decide the application. On or after such date, upon making the findings required by section 560:3-303, the registrar shall issue a written statement of informal probate appointing a personal representative subject to qualification and acceptance if at least fourteen days have passed after the last mailing or other delivery of the advance notice required by section 560:3-306, if proof that such notice has been given is filed with the registrar and if no petition for formal testacy proceedings has been filed.

    (c) Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.

    [L 1996, c 288, pt of '1; am L 1997, c 244, '4 and c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@ (continued)]]
[[Part IV, AFormal Testacy and Appointment Proceedings@]]

'560:3-403
Formal testacy proceedings; notice of hearing on petition.

    (a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by section 560:1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under section 560:3-204. The notice shall include the name and address of the applicant, the name and location of the court hearing the petition, and the date of the hearing.

    (b) Notice shall be given to the following persons: the surviving spouse or reciprocal beneficiary, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the judicial circuit or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.

    (c) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered or certified mail to the alleged decedent at the alleged decedent's last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:

  1. By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
  2. By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; or
  3. By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Rules of Court

Notice, see Hawaii Probate Rules, part A(III); HPR rule 51.

Determination of death, see HPR rules 150, 152.