(a) Definitions. In this section:
“Alternative beneficiary designation” means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or any other form.
“Beneficiary” means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and includes:
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Terms Used In Hawaii Revised Statutes 560:2-706
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Decedent: A deceased person.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Intestate: Dying without leaving a will.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Probate: Proving a will
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Summons: Another word for subpoena used by the criminal justice system.
“Beneficiary designation” includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift.
“Class member” includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had the individual survived the decedent.
“Stepchild” means a child of the decedent’s surviving, deceased, or former spouse, and not of the decedent.
“Surviving beneficiary” or “surviving descendant” means a beneficiary or a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under § 560:2-702.
(b) Substitute gift. If a beneficiary fails to survive the decedent and is a grandparent, descendant of a grandparent, or stepchild of the decedent, the following shall apply:
(1) Except as provided in paragraph (4), if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift shall be deemed to be created in the surviving descendants of the deceased beneficiaries. The surviving descendants of the deceased beneficiaries shall take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent;
(2) Except as provided in paragraph (4), if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, or “family”, or a class described by language of similar import, a substitute gift shall be deemed to be created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent shall pass to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary shall take the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary shall take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this paragraph, “deceased beneficiary” means a class member who failed to survive the decedent and left one or more surviving descendants;
(3) For the purposes of section 560:2-701, words of survivorship, such as in a beneficiary designation to an individual “if he survives me”, or in a beneficiary designation to “my surviving children”, shall not, in the absence of additional evidence, be a sufficient indication of an intent contrary to the application of this section;
(4) If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by paragraph (1) or (2), the substitute gift shall be superseded by the alternative beneficiary designation if:
(A) The alternative beneficiary designation is in the form of a class gift and one or more members of the class is entitled to take; or
(B) The alternative beneficiary designation is not in the form of a class gift and an expressly designated beneficiary of the alternative beneficiary designation is entitled to take; and
(5) As used in this subsection:
“Descendant of a grandparent” means an individual who qualifies as a descendant of a grandparent of the decedent under the:
(A) Rules of construction applicable to a class gift created in the decedent’s beneficiary designation if the beneficiary designation is in the form of a class gift; or
(B) Rules for intestate succession if the beneficiary designation is not in the form of a class gift.
“Surviving descendants of the deceased beneficiaries” means the descendants of deceased beneficiaries or class member who would take under a class gift created in the beneficiary designation.
(c) More than one substitute gift; which one takes. If, under subsection (b), substitute gifts are created and not superseded with respect to more than one beneficiary designation and the beneficiary designations are alternative beneficiary designations, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
(1) Except as provided in paragraph (2), the property passes under the primary substitute gift;
(2) If there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift;
(3) In this subsection:
“Primary beneficiary designation” means the beneficiary designation that would have taken effect had all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent.
“Primary substitute gift” means the substitute gift created with respect to the primary beneficiary designation.
“Younger-generation beneficiary designation” means a beneficiary designation that:
(A) Is to a descendant of a beneficiary of the primary beneficiary designation;
(B) Is an alternative beneficiary designation with respect to the primary beneficiary designation;
(C) Is a beneficiary designation for which a substitute gift is created; and
(D) Would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation.
“Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation beneficiary designation.
(d) Protection of payors.
(1) A payor is protected from liability in making payments under the terms of the beneficiary designation until the payor has received written notice of a claim to a substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payor, but not the recipient, from all claims for the amounts paid. A payor is liable for a payment made after the payor has received written notice of the claim. A recipient is liable for a payment received, whether or not written notice of the claim is given;
(2) The written notice of the claim shall be mailed to the payor’s main office or home by registered or certified mail, return receipt requested, or served upon the payor in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payor may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to 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 and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payor from all claims for the amounts paid.
(e) 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.
(f) This section shall not apply to payable-on-death accounts established at a financial institution. The payment of payable-on-death accounts shall be governed by section 560:6-110.
