Leaving Real Property to Heirs in Hawaii
Probate is the court-supervised process by which a decedent's property is devised or distributed to heirs upon death. Any property owned by the decedent that is not subject to non-testamentary transfer by a survivorship tenancy, trust, or recorded transfer on death deed must go through probate. The Uniform Probate Code, codified at Title 30A of the Hawaii Revised Code, governs probate proceedings in Hawaii.
After a petition for probate in the circuit court, the court appoints a personal representative (PR) who will handle administration of the decedent's estate. The personal representative's authority is evidenced by issue of letters testamentary or letters of administration, depending on the circumstances. In some cases, a personal representative may be referred to as an executor (when named in the decedent's will) or an administrator (when the decedent dies without a will). Hawaii uses the general term "personal representative" to refer to both.
Priority for appointment of the PR is established at Haw. Rev. Stat. 560:3-203. Once appointed, the personal representative gathers the decedent's assets and assesses the estate. If the decedent died testate, after paying the valid claims and applicable taxes, the PR devises any remainder according to the terms of the will. If the decedent died intestate (without a will), the estate is distributed pursuant to Hawaii's laws of intestate succession.
One common duty of the personal representative is conveying real property from the estate. If required by the terms of a will, an executor may need to execute a deed to devise or sell real estate. A PR might also seek the court's permission to sell real property to pay the estate's debts or to facilitate the distribution of the estate among multiple heirs or distributees.
PRs use personal representative's deeds to convey real property from a decedent's estate. In Hawaii, a personal representative's deed is a modified limited warranty deed, guaranteeing the grantee's title against claims arising only from the duration that the grantor held title. Persons dealing with PRs are protected under 560:3-714.
Personal representative's deeds name the acting personal representative(s) as the grantor(s) and make reference to the decedent whose property is being conveyed. The deed must meet all requirements for form and function for instruments relating to real property interests in Hawaii, including a complete legal description of the subject property, including the tax map key; prior deed reference; proper granting information, including the grantee's name, address, and vesting; and notarized signatures.
Deeds are recorded through the Bureau of Conveyances in the appropriate system: either Land Court (Torrens) or Regular System. Each parcel of property registered in the Land Court is assigned a certificate of title, on which the chain of title is updated. If the probate property is registered land, additional information may be required by the assistant registrar. Consult a lawyer with questions.
Before making the conveyance, Hawaii law requires the PR to get confirmation of the sale from the court ( 531-29). When the subject property is registered land, the personal representative is required to record with the land court certified copies of the order admitting the estate to probate and the letters, evidencing all orders of the court regarding the personal representative's authority to convey real property .
Consult a lawyer with questions about estate administration, probate proceedings, and personal representative's deeds in Hawaii. The information presented in this article is not meant to replace legal advice. Law is subject to change, and a lawyer should always be consulted in matters affecting title to real property.
Deeds.com Hawaii Personal Representative Deed Forms Have Been Updated as Recently as Wednesday January 9, 2019
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