Hawaii Transfer on Death Deed Form

What is a Hawaii transfer-on-death (TOD) deed?

A Hawaii transfer-on-death deed—or just a TOD deed—is a legal document that transfers Hawaii real estate on the death of an owner. The property goes to one or more beneficiaries chosen by the owner during life. Until death, the owner may cancel (revoke) the deed, sell or mortgage the property, or name different beneficiaries. None of these steps require notifying or involving any beneficiary named in the deed. At the owner’s death, the property passes to the named beneficiaries automatically, without the need for Hawaii probate.

Hawaii TOD deeds became part of the law when the Hawaii legislature passed the Uniform Real Property Transfer on Death Act in 2011.¹ The act applies to any Hawaii transfer-on-death deed signed at any time by a Hawaii property owner who dies on or after July 1, 2011.²

What is the purpose of a Hawaii TOD deed?

A Hawaii TOD deed serves two purposes:

1. It allows the owner to keep complete control over the property during life;³
2. It transfers property to the owner’s desired beneficiaries after death, without the need for probate.⁴

These two purposes are the same as those served by a living trust, but a TOD deed is less complex and expensive than a living trust.

A Hawaii TOD deed is nontestamentary, meaning it is not part of the owner’s estate that must go through Hawaii probate when the owner dies.⁵ In other words, signing a Hawaii TOD deed removes the property from the owner’s probate estate. Instead of going through probate, the property automatically transfers to the beneficiaries as described in the TOD deed.

What is the benefit of avoiding probate?

Probate is a court-supervised legal process for transferring the property that a person owns at death—called the probate estate—to the person’s beneficiaries or family members. Because a court supervises it, probate usually involves hiring a lawyer and going through a multi-stage legal process that can take months or even years. As part of that process, the deceased owner’s assets, debts, and affairs are all filed in the public record.

The nature of probate makes it costly and time-consuming, and it does not allow the owner’s family privacy. A Hawaii TOD deed avoids probate by removing the property from the deceased owner’s probate estate.⁶ Instead of having to “go through probate,” the property goes straight to the named beneficiaries at the owner’s death.

What types of property can be transferred using a Hawaii TOD deed?

Only real estate that is located in Hawaii may be transferred by Hawaii TOD deed.⁷ A Hawaii TOD deed cannot be used to transfer other assets—like cars or boats—that are not real estate.

What is the effect of a Hawaii TOD deed while the owner is alive?

A Hawaii TOD deed has little effect during the owner’s life. Most owners want to keep control of the property during life. With that in mind, the Uniform Real Property Transfer on Death Act focuses on explaining the things that do not change when an owner signs a TOD deed. The law lists six items that a Hawaii TOD deed does not do while the owner is still alive:

1. Affect the owner’s property rights, including the right to sell or mortgage the property;
2. Affect the named beneficiary’s rights to the property (whether the beneficiary knows about the deed or not);
3. Affect any creditor’s right or interest in the property (whether the creditor knows about the deed or not);
4. Affect whether the owner or any beneficiary can get public assistance (like Medicaid);
5. Give a beneficiary any legal or equitable interest in the property; or
6. Give a beneficiary’s creditors any right to the property.⁸

The owner is free to change his or her mind by revoking the deed (as described below) or by transferring the property to anyone else.

Can the owner sell the property after recording a TOD deed?

Yes. While the owner is alive, the Hawaii TOD deed does not affect the owner’s ability to sell the property.⁹ When the beneficiary gets the property at the owner’s death, the beneficiary accepts the property “subject to” any prior transfers or mortgages from before the owner’s death.¹⁰ In other words, if the owner has already transferred the property to someone else before death, the prior transfer controls who owns it. The TOD deed will not transfer the property to the named beneficiary.

Is a Hawaii TOD deed revocable?

Yes, any Hawaii TOD may be revoked or changed by the owner, even if language is added to the deed to make it irrevocable.¹¹ In Hawaii, all TOD deeds may be revoked (canceled).

Three types of documents may be used to revoke all or any part of a recorded or filed transfer-on-death deed:

1. A later recorded or filed transfer-on-death deed that revokes all or a part of the recorded or filed transfer-on-death deed either clearly or because they disagree;¹²
2. An instrument of revocation that clearly revokes all or a part of the recorded or filed transfer-on-death deed;¹³ or
3. A lifetime transfer using a deed that clearly revokes all or a part of the transfer-on-death deed.¹⁴

In each case, the document must be notarized after the date the transfer-on-death deed was signed. The revocation must also be recorded in the bureau of conveyances—or, for land court property, filed in the Office of the Assistant Registrar of the Land Court—before the owner’s death.¹⁵

If more than one owner signs the transfer-on-death deed, one owner’s revocation does not affect the deed as it relates to the property rights of another owner.¹⁶ The deed will be seen as revoked only if all living joint owners revoke it.¹⁷

Historically, the law has allowed specific types of legal documents—most notably, wills—to be revoked by a revocatory act such as burning, tearing, canceling, crossing out, or destroying the document or any part of it. A Hawaii TOD deed cannot be revoked by a revocatory act.¹⁸

What is the effect of a Hawaii TOD deed when the owner dies?

The Uniform Real Property Transfer on Death Act outlines a series of default rules that explain how a TOD deed works after an owner dies:

1. The property is transferred automatically to the named beneficiaries.¹⁹
2. If the deed names multiple beneficiaries (and does not describe another plan), each beneficiary receives an equal share with no right of survivorship.²⁰
3. The rights of any chosen beneficiary who dies before the property owner are seen as lapsing, meaning the transfer does not occur.²¹
4. If the deed names two or more beneficiaries to jointly own the property, any beneficiary’s share that lapses or fails for any reason is transferred to the other beneficiaries and divided among them in equal shares.²²
5. The named beneficiaries take the property “as is” and get only whatever property rights the deceased owner held at the time of death, subject to any mortgages or prior sales of the property.²³
6. The beneficiaries receive the property with no covenant or warranty of title, even if the transfer-on-death deed contains these items.²⁴

Each of these rules is a default rule, meaning it can be changed by the transfer-on-death deed.²⁵ A well-prepared Hawaii transfer-on-death deed form can use this flexibility to include other language that better meets the owner’s goals.

If any part of the property is registered with the land court, the deed should be filed with a petition noting the death of the owner and requesting a new certificate of title in the name of the chosen beneficiary.²⁶

Can a Hawaii TOD deed leave property to multiple beneficiaries?

Yes. A Hawaii transfer-on-death deed may transfer property to “one or more beneficiaries.”²⁷. Unless the deed says otherwise,²⁸ each beneficiary receives equal ownership rights in the property with no right of survivorship.²⁹ The deed may change the default rule to give the named beneficiaries a right of survivorship. This step lets the named beneficiaries avoid probate as well—when one beneficiary dies, the other beneficiaries automatically own that person’s share.

Can joint owners sign a Hawaii TOD deed?

Yes. The Hawaii Uniform Real Property Transfer on Death Act allows a single TOD deed to be signed by joint owners. The law sees a property owner who owns property with another owner with right of survivorship as a joint owner.³⁰ Of the forms of co-ownership accepted in Hawaii, owners who hold title as joint tenants and tenants by the entirety are viewed as joint owners under the law.³¹ The law does not, however, see owners who hold title as tenants in common as joint owners.³²

A right of survivorship between joint owners has more legal force than the rules of a TOD deed. On the death of a joint owner, the property passes to the surviving joint owner under the right of survivorship, no matter what the TOD deed says. On the death of the last owner, the property passes to the beneficiaries named in the TOD deed.³³ These rules allow two owners—a married couple, for example—to create a deed that leaves property to each other during life, but leaves it to others, like children, on the death of the last spouse to die.

Special rules apply to revoking a TOD deed signed by joint owners. If more than one owner signs the transfer-on-death deed, one owner’s revocation does not affect the deed or the property rights of another owner.³⁴ The deed is viewed as revoked only if all living joint owners revoke it.³⁵

What happens if the beneficiary named in a Hawaii TOD deed dies before the owner?

The Hawaii Uniform Real Property Transfer on Death Act requires the beneficiary named in the deed to be alive at the time of the owner’s death. If a beneficiary dies before the owner, that beneficiary’s interest lapses (fails).³⁶

Under the default rules, if the deed names two or more beneficiaries and one of them dies before the owner, the deceased beneficiary’s rights transfer to the remaining beneficiaries on a pro rata basis.³⁷ But this is only a default rule.³⁸ The transfer-on-death deed may include custom wording to show the owner’s wishes for lapsed property rights.

Must the owner notify the beneficiaries of the Hawaii TOD deed?

No. A transfer-on-death deed has the same legal effect whether or not the chosen beneficiary knows about it or agrees with it during the owner’s life.³⁹

Can a Hawaii TOD deed be used when the property is mortgaged?

Yes. A beneficiary who inherits property under a TOD deed accepts the property “subject to” all transfers, encumbrances, assignments, contracts, mortgages, liens, and other interests that affect the property at the owner’s death.⁴⁰ In other words, any mortgage on the property remains on the property, and the beneficiary must pay the mortgage to avoid foreclosure.

Must a Hawaii TOD deed be recorded?

Yes. To be valid, a Hawaii TOD deed must be recorded with the Bureau of Conveyances or filed in the Office of the Assistant Registrar of the Land Court before the owner’s death.⁴¹ Failure to meet this requirement makes the deed useless.

Can a Hawaii TOD deed be signed by an agent under a power of attorney?

The mental ability required to sign or revoke a TOD deed is the same as the ability required to sign a will.⁴² This suggests that an owner who lacks the legally required mental ability to make a will—whether due to dementia or other causes—cannot sign a TOD deed. In these cases, a power of attorney is likely not a good idea.

What are the requirements for a Hawaii TOD deed?

A Hawaii transfer-on-death deed:

1. Must meet the requirements that apply to all Hawaii deeds, including naming the parties and giving a valid legal description;⁴³
2. Must state that the transfer to the beneficiary will occur at the owner’s death (or, if there are multiple owners, on the death of the last owner to die);⁴⁴ and
3. Must be recorded with the Bureau of Conveyances—or, if the deed is for land court property, filed in the Office of the Assistant Registrar of the Land Court—before the owner’s death;⁴⁵ and
4. If any part of the property is registered with the land court, the deed should be accompanied by a petition noting the death of the owner and requesting a new certificate of title in the name of the chosen beneficiary.⁴⁶

The Hawaii Uniform Real Property Transfer on Death Act includes a model form that—like its equals in other states—serves as a starting point. However, it does not include all the options that most Hawaii property owners want. It is important to customize the Hawaii TOD deed to meet the owner’s goals.

1. Haw. Rev. Stat. §§ 527-1, et seq.
2. Haw. Rev. Stat. § 527-3.
3. See Rev. Stat. § 527-12.
4. See Rev. Stat. § 527-7.
5. See Haw. Rev. Stat. § 527-7.
6. See Haw. Rev. Stat. § 527-7.
7. Haw. Rev. Stat. § 527-2.
8. Rev. Stat. § 527-12.
9. Haw. Rev. Stat. § 527-12(2).
10. Haw. Rev. Stat. § 527-13(b).
11. Haw. Rev. Stat. § 527-6.
12. Rev. Stat. § 527-11(a)(1).
13. Rev. Stat. § 527-11(a)(2).
14. Rev. Stat. § 527-11(a)(3).
15. Haw. Rev. Stat. § 527-11(a).
16. Haw. Rev. Stat. § 527-11(b)(1).
17. Haw. Rev. Stat. § 527-11(b)(2).
18. Haw. Rev. Stat. § 527-11(c).
19. Rev. Stat. § 527-13(a)(1).
20. Rev. Stat. § 527-13(a)(3).
21. Rev. Stat. § 527-13(a)(2).
22. Rev. Stat. § 527-13(a)(4).
23. Rev. Stat. § 527-13(b).
24. Rev. Stat. § 527-13(d).
25. See Haw. Rev. Stat. § 527-13(a) (“Except as provided in the transfer on death deed”).
26. Haw. Rev. Stat. § 527-13(a)(1).
27. Haw. Rev. Stat. § 527-5.
28. See Haw. Rev. Stat. § 527-13(a) (“Except as provided in the transfer on death deed”).
29. Haw. Rev. Stat. § 527-13(a)(3).
30. Haw. Rev. Stat. § 527-2.
31. Id.
32. Id.
33. Haw. Rev. Stat. § 527-13(c).
34. Haw. Rev. Stat. § 527-11(b)(1).
35. Haw. Rev. Stat. § 527-11(b)(2).
36. Haw. Rev. Stat. § 527-13(a)(2).
37. Haw. Rev. Stat. § 527-13(a)(4).
38. See Haw. Rev. Stat. § 527-13(a) (“Except as provided in the transfer on death deed”).
39. Haw. Rev. Stat. § 527-10.
40. Haw. Rev. Stat. § 527-13(b).
41. Haw. Rev. Stat. § 527-9(3).
42. Haw. Rev. Stat. § 527-8.
43. Rev. Stat. § 527-9(1).
44. Rev. Stat. § 527-9(2).
45. Rev. Stat. § 527-9(3).
46. Rev. Stat. § 527-13(a)(1).