Pt 2: Standard Documents @ HawaiiDeed
Executor / Executrix Deed (Probate Deed)
During the course a formal probate, informal probate, or ancillary probate, the executor or executrix of the last will and testament will need to convey real property. This is accomplished by an Executor / Executrix Deed, which is sometimes referred to as a probate deed. The warranties of this type of deed are usually very limited and are tied to the findings and orders of the probate court, so a buyer or grantee this deed should be treated like a quitclaim deed.
When the original trustees of a living trust pass away, the successor trustee is typically tasked with selling or conveying real property owned by the trust. In conjunction with an affidavit of death or a petition to note death, the successor trustee can issue a Trustee Deed to a new owner. Depending on the situation, a trustee deed can be made with or without warranties.
Deed of Trust
A deed of trust is a conveyance to a third party pending satisfaction of certain conditions by the grantee (usually payment in full of the purchase price, plus interest). The third party holds the title to real property with explicit written instructions from the grantor and grantee to convey the title either to the grantee after certain conditions are met or back to the grantor if they are not met within a certain time period.
Affidavit RE Name Change
Affidavits to note a name change should be used to ensure that your property title is accurate and up to date. This will ensure that you don't have to worry about proving who you are when you try to convey the property in the future. Unlike a Land Court petition for this same purpose, the necessary evidence and documentary support are minimal.
Petition to Note Marriage / Divorce / Name Change / Etc.
If you have property in the torrens system, you must update the Land Court with every major life change. It is best to make these updates as they happen, otherwise they will all have to be done before the next conveyance and it can be difficult at that time in the future to gather the required documentation. Petitions to note important life changes are based upon an affidavit from the owner and exhibits that officially document and provide proof of the life event. We see a lot of people whose petitions have been rejected because they fail to adequately prove their claim. So be sure that each statement of fact is properly supported.
Certificate of Lease
Most leases are NOT recorded. But some leases are designed to convey maximum ownership and use rights to a lessee and so they act much like deeds. For these types of leases, an instrument is recorded to put the public on notice of the lessee's interest in the property. In Hawaii, the most common types of recorded leases are those from the Department of Hawaiian Homelands ("DHHL"). But rather than recording the entire 40-60 page lease agreement (that might contain some private or unique information) the parties will draft and record a Certificate of Lease, which gives notice of the essential information that the public might need to know.
Notice of Lien
Except for nonconsensual common law liens, HawaiiDeed records liens for people for a variety of reasons. A lien is a claim against the property of another person. Maybe you have a court-ordered judgment against someone or you want to give someone a lien against your own property to secure a debt. A notice of lien is recorded against the subject property in order to put the public on notice of your claim against the property. This creates a security interest for you and established the in order in which you will be paid (if at all) when the property is sold or foreclosed upon.
A promissory note is a the legal term for an I.O.U. These are prepared to document a loan or another form of indebtedness. When the promissory note is secured by real property, a notice of lien is recorded after the promissory note is signed, which puts the public on notice of your claim against the property.
Conveyance Tax Certificate
Hawaii collects conveyance tax on transfers of real property that are not exempt. There are exempt and non-exempt forms that must be submitted along with the deed for recording. Failure to submit the appropriate form will result in a rejection of your submission. In non-exempt transactions, both the grantor and grantee must sign the form. For exempt transactions, only one of the parties must sign. By signing the conveyance tax form, the party or parties are certifying to the state that the financial terms and the nature of the transaction are true and accurate as they are described on the form. Improper certifications can lead to criminal or civil penalties.