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Pt 1: Standard Documents @ HawaiiDeed

Updated: Aug 15

Quitclaim Deed

A deed is a legal document that is signed a delivered and, although it can refer to any such document, the term deed is used almost exclusively in the context of transferring interests in real estate. There are at least two parties to a deed: the grantor and grantee. The grantor in a deed is the person who is giving up some interest in the real property and the grantee is the person who is receiving that interest.

The grantor in a quitclaim deed is quitting his/her ownership of all or a portion of the property. He or she is essentially stepping away from ownership and saying to the grantee: here, you can have my interest in the property. This is very different from a warranty deed, which is the other most common type of deed in Hawaii.

Warranty Deed

A deed is a legal document that is signed a delivered and, although it can refer to any such document, the term deed is used almost exclusively in the context of transferring interests in real estate. There are at least two parties to a deed: the grantor and grantee. The grantor in a deed is the person who is giving up some interest in the real property and the grantee is the person who is receiving that interest.

In a warranty deed, the grantor represents to the grantee that he/she owns, and has the legal right to transfer, the property to the grantee. Moreover, the grantor also represents that the property is free from encumbrances not otherwise specified. The grantor also agrees to defend against any legal claims to the title that arose both during and before his/her ownership. The warranty deed provides the most protection to the grantee as it becomes the grantor's responsibility to resolve any of the aforementioned claims against the transferred property.

Limited Warranty Deed

A deed is a legal document that is signed a delivered and, although it can refer to any such document, the term deed is used almost exclusively in the context of transferring interests in real estate. There are at least two parties to a deed: the grantor and grantee. The grantor in a deed is the person who is giving up some interest in the real property and the grantee is the person who is receiving that interest.

In between a quitclaim and a warranty deed is the Limited Warranty Deed. This type of deed provides some of the protections of a warranty deed, but not all of the them. The grantor in a limited warranty deed will carve out exceptions or make reservations that are designed to limited the grantor's potential liability. In most transactions, these limits on the warranty will be related to things that are beyond the control of the grantor (e.g. a master lessor's renewal of a 100 year ground lease in the year 2083).

Timeshare Deed

Typically written as a limited warranty deed, a timeshare deed is a specific to fractional ownership real estate. A limited warranty deed provides some of the protections of a warranty deed, but not all of the them. The grantor in a limited warranty deed will carve out exceptions or make reservations that are designed to limited the grantor's potential liability. In most transactions, these limits on the warranty will be related to things that are beyond the control of the grantor (e.g. a master lessor's renewal of a 100 year ground lease in the year 2083).

Transfer on Death Deed

Hawaii state law permits property owners to record a transfer on death deed, which is intended to minimize or eliminate the need for probate. This type of deed maintains your ownership of the property but specifies who is to take ownership when you pass away. As an automatic conveyance, there is very little paperwork needed to formalize this transfer after death and probate is not required. You might be wondering what happens if you change your mind later and want your real estate to go to someone else. A transfer on death deed can be amended and/or replaced at any time and the other thing that needs to be done is to draft, sign, and record a new deed.

This is advantageous for people whose real estate is their largest asset. One disadvantage is that if your other assets have a value of more than $100k, probate will still be necessary to transfer ownership of those assets.

Trust Deed

This type of deed is usually written as a quitclaim or warranty deed, depending on whether the grantor wants to maintain his/her title insurance policy. A trust deed conveys the owner's interest from him/herself individually to him/herself as the trustee of his/her trust. This is commonly the most important step in funding your new living trust--but not all attorneys will draft and record the documents for you.

Deed to Update Tenancy

Real property is owned with a specified or default tenancy. A individual person can own property only as a "tenant in severalty." Two or more people can own real property as "tenants in common" or as "joint tenants with rights of survivorship." Married couples can own real property as "tenants by the entirety." As an estate planning tool, property can avoid probate proceedings if it is owned by two or more people as tenants by the entirety or as joint tenants with rights of survivorship. This is because when property is owned in either of these tenancies a deceased owner's interest automatically passes to the surviving owner without the need for a order from the probate court.

Power of Attorney

How can you give someone the legal right to act on your behalf? Execute and record a power of attorney that specifies the types or categories of decisions that the person may make for you. A power of attorney can be limited in duration and scope. In order for someone to make decisions regarding your real property the power of attorney must be recorded in the State of Hawaii Bureau of Conveyances.

Affidavit of Death

When the owner of real property in Hawaii passes away (whether they pass in Hawaii or not), a surviving joint tenant or a surviving tenant by the entirety needs to record a affidavit of death to update his or her property title. By doing this, the public is then put on notice that property instruments no longer require the deceased's acknowledgement. This is useful when, for example, a surviving spouse wants to list his/her home for sale and needs to prove that he/she has the sole authority to make decisions relating to the property. An affidavit of death can be recorded by itself or, in the regular system, it can be recorded along with a new deed so as to remove the deceased's name from the title and prevent any confusion.

Petition to Note Death

In the world of Hawaii conveyances, petitions are exclusive to the Land Court--Hawaii's torrens system. Like an affidavit of death, the Petition to Note Death is prepared when one or more owners of Land Court property passes away. After an affidavit of death is filed and approved by the Land Court, there is no need to record a new deed unless you need to add or remove living persons.

#hawaiideed #deeds #glossary

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