© 2015 - 2019 HawaiiDeed LLC - All Rights Reserved - Terms of Service

  • HawaiiDeed on Facebook
  • HawaiiDeed on Twitter
  • HawaiiDeed on Instagram
HawaiiDeed - Quitclaim, warranty deed, hawaii property transfers
Types of Conveyance Documents

What types of documents can HawaiiDeed help you with and what do these instruments do?

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.

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.

Trustee 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.

Promissory Note

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.

Quitclaim?
Quickclaim?
Quietclaim?
 
 
 
 
 
A deed won't replace an estate plan, but it will be VERY helpful
We are honored to help the next generation take title to Hawaii properties
There's a lot more to property ownership than just a deed!
Death, taxes, and financial obligations...
 
Get Your FREE Guide

Discover 3 Ways that Deeds Can Help Avoid Probate

Simple deeds are cost effective tools for estate planning

WHAT HAPPENS IF YOU DON’T PLAN AHEAD TO AVOID PROBATE?

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.

 

Contact Our Deed Specialists Today

Call us at (808) 379-3739

Or we'll contact you:

About Us      Contact      Locations      (808) 379-3739      team@hawaiideed.com