What are tenancies?
A tenancy describes how someone holds title to the property.
This is a critical element in the deed preparation process because it determines what happens to each grantee's interest in the property when they pass away.
Choosing the right type of tenancy to hold title can help your loved ones avoid the hassle and expense of probate.
Tenant in Severalty
This is how an individual (sole grantee) holds title to real property.
This is how trustees of a trust hold title to real property. It indicates that the trust documents govern ownership and how the property is treated upon death of the trustor (creator of the trust).
Tenants in Common
Multiple owners of real estate are "tenants in common" by default. This type of ownership treats each owner as having a separate and distinct interest from the other owners. Thus, when a tenant in common passes away, that person's heirs will inherit their interest in the property. So, as an example, suppose that A, B, and C own real estate and tenants in common and C passes away leaving children C1 & C2. After C's death, the owners of the property are: A, B, C1, and C2.
Joint Tenants with Rights of Survivorship
This form of ownership ensures that the property stays among the listed owners. So, if a joint tenant passes away, the other joint tenants who have rights of survivorship will take over that person's interest. This means that the heirs of the person who passes away will not get an interest in the property.
Tenants by the Entirety
This is just like Joint Tenants with Right of Survivorship, except that the owners are married.
Can I avoid probate with a deed?
There are 3 basic situations where you might find yourself stuck in Hawaii’s probate court, dealing with the distribution of your loved one’s assets. First, probate is required when someone dies without a will. This process is referred to as administration and it is governed by the Hawaii Revised Statutes. The executor and heirs are determined by law and in order to ensure the just administration of the estate, outside experts may be required and their fees will be deducted from the assets of the estate.
Second, you might find yourself in Hawaii’s probate court if your loved one died with a will and either (a) the estate is worth more than $100k, or (b) the estate owns real property. In either case, you can use an “informal” proceeding unless there is a reasonable likelihood of disputes or objections from family members, heirs, or disinherited heirs. The potential for conflict necessitates a “formal” proceeding.
Third, even though the deceased might have created a living trust, probate needs to be opened when not all of the deceased’s assets were owned by the trust. This is often the case with an old bank account or vehicle (sometimes with real property). When a living trust is created, a pour-over will should be executed at the same time. This special type of will acts to transfer all of the deceased’s assets to the trust. So after a quick probate, the trust controls all of the assets and the successor trustee can now make the required distributions.
To recap, the 3 main scenarios where probate will be required are when:
The deceased doesn’t have a will;
The deceased has a will but either:
Has a total value of more than $100k; and
Owns real estate; or
The deceased created a living trust but didn’t transfer all of his/her assets to it.
What happens if you don't plan ahead?
Probate is a court proceeding and it therefore requires time and money in order to be completed properly. The costs of probate are usually paid by the estate, which reduces the amounts that heirs will receive. It also opens the door to possible disputes among family members, heirs, and disinherited heirs. While probate is ongoing, heirs are losing potential rental income or the current value of the assets. There is the risk of changes in the market that significantly reduce the overall value of the assets. And financial obligations of the estate are not paused—the estate has to continue paying a mortgage, property taxes, association fees, etc. All of this effects (and usually reduces) what the heirs are intended to inherit.
What can you do to avoid probate?
All of this can be avoided or minimized to a known quantity with a legal consultation and a few essential documents. Depending on your situation (your assets and goals) there are many options. The advantages and disadvantages of each may vary for each individual, but they are generally accurate for everyone.
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How do I transfer after an owner has died?
Transferring Hawaii property after death
Many of our clients live on the US mainland or in Canada and they reach out to us after their parents have passed away to find out how to transfer the family’s Hawaii property into their names. There are several questions that need to be answered about the last parent to pass in order to determine the next steps:
Where did the parent live at the time of death?
Did the parent have a will?
If so, does the will specify a jurisdiction for probate?
Has probate already been conducted outside of Hawaii?
Did the parent have a trust?
If so, was the real estate owned by the trust?
Who are the heirs or beneficiaries? What are their respective interests in the property?
Depending on the answers to these questions, there are three main options:
Affidavit & Deed – For tenants by the entirety and joint tenants with rights of survivorship
Ancillary Probate – local recognition of an executor’s appointment in another jurisdiction
Informal Probate – court-ordered appointment of the executor to fulfill the deceased’s wishes
Trustee Conveyance – privately confirmed authority, notice, and transfer of real property
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Learn how to complete a transfer after an owner has passed away.