CONVEYING POST-DEATH
How to transfer property after an owner has passed away.
Where To Start?
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 four 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
Affidavit of Death & A New Deed
Married couples can own real estate as “Tenants by the Entirety” and any two or more people can own property as either “Tenants in Common” or “Joint Tenants with Rights of Survivorship.” After the death of a spouse or a joint tenant, Hawaii allows the survivors to record an affidavit of death, which serves to recognize them as the remaining owners. Once the affidavit is recorded, the surviving owners can sell or transfer any or all of the interests in the property. This can be done without going through probate.
For properties recorded in the Land Court system, this can be accomplished with a petition to note death.
Ancillary Probate
This is a second probate proceeding, but it isn’t as costly or as time-consuming as the first one because it piggy-backs off of the first one. With an ancillary probate in Hawaii, we are seeking to obtain the local court’s recognition of an executor’s authority that was ordered by a foreign court. This is necessary in order to empower the executor to dispose of tangible property in Hawaii.
Your parents might have owned a vacation home in Hawaii but lived in another state or country. Their Hawaii property is governed by Hawaii law. When probate is started in another state and that state’s court appoints an executor, that person is not automatically authorized to dispose of property owned in Hawaii. The Hawaii probate court must acknowledge the authority of a foreign-appointed executor before Hawaii property can be conveyed by an executor.
Ancillary probate is a hassle, but it is intended to ensure the integrity of property rights in Hawaii. Our proven systems and processes help clients through the ancillary probate process efficiently and effectively. We love helping the next generation take over property ownership in Hawaii and there are ways that we can do this proactively so that you can avoid an ancillary probate entirely.
Informal Probate
In Hawaii, estates that include real property must go through probate. The executor of the will must initiate probate proceedings in order to obtain the legal authority to convey the property to the heir or heirs, in accordance with the terms of the will. Persons other than the executor can initiate probate, but they will not necessarily be granted any authority to act for the deceased. The informal probate process is not monitored by the court and, once the Letters Testamentary are signed by the judge and filed by the court, the executor can take control of the assets of the estate and make the necessary distributions.
Informal probate is a relatively easy type of court case because it is based upon full agreement among the family members and heirs of the deceased. If there is ANY likelihood that a member of the family or an heir (or a disinherited heir) could object to any actions being taken, then informal probate is inappropriate, and a formal probate proceeding should be initiated.
Losing a loved one is stressful enough, so disagreements and disputes among families (and heirs/disinherited-heirs) should stay out of the courts. A person’s last will should be honored and respected by everyone who is affected by it. When interested parties reach an agreement to resolve a dispute before or during the probate process, an informal probate can proceed. But that agreement should be clearly stated in a signed written document.
Trustee Conveyance
If your loved one created a living trust (sometimes called a revocable trust), they wanted you to avoid the cost and hassle of probate. When the trustee of a trust passes away, the successor trustee is automatically appointed and he or she assumes full control of the assets that trust owns. The Trust Agreement will define the successor trustee’s duties and obligations, which, in most cases, will require the distribution of the trust’s assets. Sometimes, it is necessary to conduct a quick probate of the deceased’s pour-over will to transfer all of the assets into the trust.
By recording an Affidavit of Death of Trustee, the successor trustee formalizes his or her authority to convey real property and can then record a deed transferring any of the trust’s real property to the rightful beneficiary.
The consequences of mistakes or omissions during the conveyancing process can be significant. Creating a cloud on real property is usually not irreversible but it takes more time and money than doing it correctly the first time. The filing requirements are very specific and, especially in Land Court, can even be challenging for experienced professionals.
HawaiiDeed's proven systems ensure that matters are processed quickly, efficiently, and accurately.