Hawaii's (New) Transfer on Death Deed
Hawaii passed the Uniform Real Property Transfer on Death Act, effective as of July 1, 2011. This creates a method whereby a property owner may record a Transfer on Death Deed ("TODD"), leaving the property to beneficiaries designated in that instrument upon the death of the owner. The transfer on death is nontestamentary, meaning that it will avoid probate/intestate administration proceedings in Hawaii courts.
Here are some issues to consider with regard to the Transfer on Death Deed, some particular to Hawaii, some not:
The TODD is revocable, but only by (a) a subsequent TODD, (b) a subsequent (Non transfer on death) deed with express revocatory language, (c) an express revocation document.
For any of the above revocations to be effective, the instrument must be (a) acknowledged (i.e., notarization), and (b) recorded (or filed with Land Court if the property is Land Court registered). The recordation or filing with Land Court must be done before the transferor's death to be effective.
Revocation for jointly owned property is effective only if all living joint owners revoke.
If a person designated in a deed has predeceased the Transferor, the transfer lapses.
Keep in mind Hawaii has no county recorders. All instruments must be recorded at the state level, either as a registration in the Land Court (for "Land Court Property"), or in the Bureau of Conveyances, or both (if the property is both recorded in the Bureau of Conveyances and registered in Land Court). Transfer at the death of the Transferor is automatic if the property is only recorded in the Bureau of Conveyances. If the property is registered with Land Court, transfer is not automatic and will require a Land Court Petition for such transfer to become effective.
Although a TODD may avoid probate or intestacy proceedings, the statute provides that a TODD property will be subject to creditors' claims and claims for statutory allowance (such as homestead allowance) sought in probate or intestacy proceedings.