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Hawaii Transfer on Death Deed: Simplifying Property Transfers
A Hawaii transfer on death deed presents a relatively new approach to property transfer in the state. While it may appear similar to a will, it holds distinct characteristics and guidelines that are essential to understand. Here, we delve into the key aspects of Hawaii transfer on death deeds and the implications.
Understanding Hawaii Transfer on Death Deed:
A transfer on death deed allows the transferor to establish a deed that designates the property's transfer to one or more individuals upon the transferor's passing. It's important to note that this is not a will; however, the transferor must possess the capacity required to create a testamentary instrument, akin to a will. The deed must explicitly indicate that the transfer will take effect upon the transferor's death.
Applicability and Revocability:
The Hawaii transfer on death deed applies to both deeds recorded in the Bureau of Conveyances and Hawaii Land Court. Importantly, this type of deed is revocable until the transferor's passing. After the transferor's passing, the revocability ceases.
Revocation Protocols:
Revoking a transfer on death deed requires adherence to specific formalities. The revocation must maintain the same formal elements as a recordable deed.
Simplicity and Ownership:
Unlike traditional transfers, the transferor retains ownership of the property during their lifetime.
Considerations and Implications:
While a transfer on death deed can often circumvent probate, certain aspects merit attention. In cases where the transferee intends to sell the property, it's crucial to understand that title insurance issuance may be delayed. This is due to potential creditor claims against the transferor's probate estate, which could extend to the transferred property.
Navigating Hawaii transfer on death deeds requires a comprehensive understanding of legal intricacies. Consulting with an attorney is advised to ensure compliance and informed decision-making.
Disclaimer: The information provided on this website is intended as general guidance and not legal advice. It provides an overview of Hawaii law and should not replace consulting an attorney in Hawaii. This content does not cover all aspects of Hawaii deeds. Thank you.
HAWAII TENANCY BY THE ENTIRETY
Please Note: The following information is not intended to be legal advice or create a Hawaii attorney client relationship. It is general information about Hawaii deeds, and should not substitute for hiring an attorney in Hawaii. It does not cover all information regarding Hawaii deeds. Thank you.
A tenancy by the entirety can be created by a Hawaii deed of real property if the deed has language indicating that it is creating a tenancy by the entirety. The property owners who can title property in tenancy by the entirety in Hawaii must be married or be reciprocal beneficiaries.
A reciprocal beneficiary is an adult who is a party to an unterminated registered reciprocal beneficiary relationship under chapter 572C in the Hawaii Revised Statutes. The tenancy by the entirety designation creates a right of survivorship whereby if one spouse dies the property will automatically pass to the other living spouse. The property would not be subject to Hawaii probate. When both owners of the tenancy by the entirety property die, that property would go through probate and pass to the beneficiary named in the last living spouse’s will or by the Hawaii laws of intestacy.
It should be noted that there are circumstances regarding trust property owners who are married or reciprocal beneficiaries to have creditor benefits as though the property was held in tenancy by the entirety but it is more technical than creating a real property deed in tenancy by the entirety.
For more information, see Hawaii Revised Statutes section 509-2 (2020).
HAWAII DEED TO TRUST
Please Note: The following information is not intended to be legal advice or create a Hawaii attorney client relationship. It is general information about Hawaii deeds, and should not substitute for hiring an attorney in Hawaii. It does not cover all information regarding Hawaii deeds. Thank you.
If you have a trust set up that is a good start. But to get your Hawaii real property actually into the trust, the Hawaii deed needs to be titled to the trust. What that means is that your Hawaii deed will have to be changed from the current owners as Grantees to the Trustee of the Trust as Grantee. And the deed should be recorded in the Hawaii. To do this, you can have a Hawaii attorney draft the new Hawaii deed naming the Trustee as the Grantee, and then record it for you. As stated above, if the deed is not titled to the Trust, and properly recorded, it is possible that the deed will not be owned by the trust. Often a trust is set up to avoid a probate or multiple probates if real property is owned in 2 or more states. If the Hawaii property isn't properly titled to the trust, then the result is that the Hawaii property may have to go through the Hawaii probate process.
A relatively common scenario is the following: A trust is set up and all property is titled to the trust, however, the creator of the trust forgets about that Hawaii timeshare or Hawaii condo that he or she owns. At the death of the creator, the Hawaii property has to go through probate in Hawaii. To avoid this, hire a Hawaii attorney to title the Hawaii deed to the trust. If you are already in this situation, don't panic. A probate in Hawaii can probably be opened informally. Call today and I can assess your situation and help open the probate if necessary.
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