A transfer on death (TOD) deed is like a regular deed you might use to transfer your Hawaii real estate, but with a crucial difference: It doesn't take effect until your death. At your death, the real estate goes automatically to the person you named to inherit it (your "beneficiary"), without the need for probate court proceedings. (Haw. Rev. Stat. §§ 527-1 and following)
You must sign the deed and get your signature notarized, and then record (file) the deed with either the Bureau of Conveyances or the Office of the Assistant Registrar of the Land Court (see "Recording Your Deed" below to determine which) before your death. Otherwise, it won't be valid.
You can make a Hawaii transfer on death deed with WillMaker.
The beneficiary's rights. The person you name in the deed to inherit the property doesn't have any legal right to it until your death—or, if you own the property as "joint tenants" or "tenants by the entirety" with someone else, until the last surviving owner dies. (More on this below.) The beneficiary doesn't sign the deed, but it's a good idea to let the beneficiary know you've recorded it. Otherwise, he or she might not know about it, even after your death.
Earlier wills or TOD deeds. If you have made a will or previous TOD deed that leaves the property to someone, your new TOD deed will override it.
Your rights. You keep complete ownership of, and control over, the real estate while you're alive. You pay the taxes on it, and it's not protected from your creditors. You can sell it, give it away, or mortgage it. Because you're not making a gift of the property, there's no federal gift tax.
Medicaid. Creating a TOD deed won't affect whether or not you are eligible for Medicaid. Because you own the property and are not actually giving it away during your lifetime, a TOD deed won't help you "spend down" your assets to help you qualify for Medicaid. Beware, though, that if you do end up receiving Medicaid benefits—for example, to pay for nursing home care—your home might be liable for reimbursement of Medicaid. If you have questions, consult a local attorney.
Other creditor claims. Even though your TOD deed transfers your property outside of probate, if your probate property isn't enough to satisfy certain creditor claims and statutory allowances (certain amounts your spouse and children are entitled to at your death, set out by law), your beneficiary might be liable for these claims, up to the value of the property. However, there's a deadline: creditors have 18 months after your death to begin legal proceedings.
Revoking the deed. If you later change your mind about who you want to inherit the property, you are not locked in. You have two options: (1) sign and record a revocation or (2) record another TOD deed, leaving the property to someone else. You cannot use your will to revoke or override a TOD deed.
Revocation by divorce. If you named your spouse as a beneficiary on your TOD deed and later get divorced, that designation is automatically revoked.
How ownership is transferred. The steps your beneficiary will need to take to get title to the property after your death depend upon which recording system your property is in (see "Recording Your Deed" below). If the property is in the "regular system," the beneficiary must record an affidavit confirming your death in the Bureau of Conveyances. If the property is in the "land court system," the beneficiary must record a petition that notes your death and requests a new certificate of title be issued in the beneficiary's name. No probate is necessary.
If you own the property with someone else, how to proceed depends on how you and the other co-owners hold title to the property. If you don't know how you hold title, start by looking at the deed that transferred the property to you. It might say, for example, "to Ellen Bauman and Edward M. Bauman, as joint tenants," or "to Jonathan G. Costa and Sandra L. White, as tenants in common."
There are three common ways to co-own property in Hawaii:
Joint tenancy (also called "joint tenancy with right of survivorship"). If you co-own real estate as joint tenants with right of survivorship, when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s). You can make a TOD deed together with the other joint tenant(s) or you can make one on your own, but it's important to understand the difference.
When you make a TOD deed together with the other joint tenant(s), you are naming someone to receive the property after all of the joint tenants have died.
Example: Claire and Kendra co-own their home as joint tenants. They make a TOD deed together and name Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Kendra, who becomes the sole owner of the entire home. When Kendra dies, the home goes to Oscar under the TOD deed.
If you make a TOD deed on your own, without the other joint tenants, the deed will be effective only if you are the last surviving owner of the property. If you die first, the surviving co-owner(s) will own the property, and the TOD deed won't have any effect.
Tenancy in common. If your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless you've agreed otherwise in writing. If you own your property as a tenant in common, it's best to create a TOD deed on your own (without the other tenants in common). That TOD deed will transfer only your share of the property to the TOD beneficiary when you die.
Example: Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a TOD deed that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.
Tenancy by the entirety. This form of co-ownership is available only to married couples; when one spouse dies, the survivor automatically owns the entire property. If you and your spouse hold real estate as tenants by the entirety, you both must sign the deed, which will take effect only after both spouses have died. If you sign a TOD deed alone, it will have no effect.
If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer. While the guidance here fits most situations, if you have a complicated situation or more complex aims, you should turn to a lawyer for a more tailored solution.
Revoking a jointly made deed. If you sign a TOD deed with a co-owner, the effect of revocation depends on how you co-own the property and who does the revoking.
If you co-own the property as tenants in common:
On the other hand, if you co-own the property with right of survivorship (as joint tenants or tenants by the entirety), your co-owner will automatically own the entire property upon your death (and vice versa). So:
Note on trust property. If you hold real estate in a trust, you probably won't need to use a TOD deed, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD deed instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.
You can name anyone you please to inherit your real estate—a person, more than one person, or an organization such as a favorite charity. But if you want to name more than one person, or a minor, there are some issues you should consider.
More than one beneficiary. Before you name multiple beneficiaries on your transfer on death deed, make sure you consider 1) how the co-beneficiaries will hold title to the property after you die, 2) what will happen if one of the co-beneficiaries dies before you do, and 3) how the beneficiaries will feel about co-owning the property.
As to the first issue, when you make WillMaker's transfer on death deed for Hawaii, your property will transfer to your beneficiaries in equal shares with no right of survivorship. This is the default under Hawaii law. In other words, your beneficiaries will own your property as tenants in common and each beneficiary will be free to leave his or her share to someone else or to sell that share of the property.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. After you die, they will own the property as tenants in common. Tim leaves his one-third share of the property to his son Cameron in his will. Stephanie sells her one-third share of the property to Anya. After Tim dies, Cameron, Anya, and Rebekah own the property.
As to the second issue, if one or more of the beneficiaries dies before you do, their share or shares of the property will be transferred to the surviving beneficiaries.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. Tim dies before you do. Stephanie and Rebekah would each inherit half the property. They would own it as tenants in common, and are each free to sell or leave their half of the property to someone else.
Finally, think carefully about how your beneficiaries will feel about owning the property together. Co-ownership is cumbersome and often causes tension. For example, one co-owner could force a sale of the property even if the other co-owners didn't want to sell.
Children under 18. Think twice about naming a child under age 18 as a beneficiary. A child can take title to the property, but an adult will need to manage it.
When making a TOD deed with WillMaker, you can name an adult "custodian" under the Hawaii Uniform Transfers to Minors Act (UTMA) to manage the property. Under Hawaii's UTMA, the beneficiary becomes the outright owner of the property at age 21.
You may have other options for naming an adult property manager, including:
For more information, see Naming a Minor Beneficiary for Transfer on Death Deeds. For help setting up a property management method, consult a qualified estate planning lawyer.
Alternate beneficiaries. If you wish, you can name an alternate (successor) beneficiary. This beneficiary will inherit the property if your first-choice beneficiary (or all of them, if you named more than one) die before you do.
The 120-hour rule. Your transfer-on-death deed will be subject to Hawaii's 120-hour survival rule, which states that your beneficiary must survive you by 120 hours (or 5 days) to receive the property. The goal of this survivorship rule is to prevent your property from going to your beneficiary's beneficiaries—rather than to your own beneficiaries—if you and that beneficiary die close in time.
Example: Sarah uses a transfer-on-death deed to leave her house to her brother Juan. Her deed states that the deed is canceled if Juan does not survive her. If Sarah and Juan are in a car accident together and Sarah dies on June 10, and Juan dies on June 12, the 120-hour rule means that the deed will be canceled, and the house will go to Sarah's residuary estate. (If the 120-hour rule were not in place, Sarah's house would go to Juan's estate rather than her own.)
Several kinds of legal descriptions are used in Hawaii. Just copy what's on the previous deed that transferred the property to you. Here are two examples:
If the legal description is too long to safely type out (they can even run several pages long), simply photocopy or scan and print it, and attach it to the transfer on death deed as "Exhibit A."
Hawaii has two land record systems. One is known as the "regular system"; deeds for property within this system must be filed with the Bureau of Conveyances. The other system is known as the "land court system;" deeds for property within the land court system must be filed with the Office of the Assistant Registrar of the Land Court. A small number of properties require filing documents in both offices. How do you know which system your property is in? Look at the deed that transferred ownership of the property to you. There should be a label at the top of the document. If the label says "BOC" or "Bureau of Conveyances," then your property is in the regular system, and you will need to file your transfer on death deed with the Bureau of Conveyances. If the label says "Office of the Assistant Registrar," then your property is in the land court system, and you will need to file your transfer on death deed with the Office of the Assistant Registrar of the Land Court. If you see both labels, then you'll need to file your deed with both offices. If you are uncertain, try contacting one of these offices, or consult an attorney.
Accurate, plain-English legal information can help many people create useful legal documents. But general information is never a substitute for personalized advice from a knowledgeable lawyer. If you want professional advice about the best way to craft or use legal documents in your particular circumstances, consult an attorney licensed to practice in Hawaii.