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Avoiding Probate When You’ve Got a Proper Real Estate Plan in Place

Avoiding probate is something you’ll be determined to do because it can prevent heated arguments and unnecessary tension during the distribution of a loved one’s assets. The evaluation and division of assets can be a messy, drawn-out process that may leave a family confused and stressed. Don’t place this burden on your family, so be sure to set up reliable measures for probate avoidance in Honolulu.

Living Trusts

One way to avoid probate in Honolulu is to make a living trust. To do this, you need a trust document naming someone who will take over as the trustee of possessions after you pass. After your death, the trustee will then be responsible for asset management. As a result, the property will be controlled by the trust’s terms. The living trust process is similar to creating a will and allows the successor trustee to transfer ownership to the designated trust beneficiaries without probate court involvement.

It’ important to note that for Hawaiian estates that exceed the small estate threshold and are not attached to a will or the will does not contain a living trust, probate will be needed. Without a living trust, it becomes harder to transfer the estate to beneficiaries at will. If your estate is deemed a ‘small estate’ court proceedings are not needed.

Transfer-On-Death Deeds for Real Estate

Also termed as beneficiary deeds, transfer-on-death deeds allow you to sign and record the deed from now. However, this deed and its accompanying terms only take effect once you have passed away. Revoking the deed or selling the property is up to you, and whoever you have named as a beneficiary cannot take responsibility until after your death.  

Joint Ownership

Another common probate avoidance method is proving you and someone else co-own your property while outlining a right of survivorship. Once this is declared, the surviving owner takes hold of the property once the co-owner dies.

You will need paperwork to prove legitimacy, but this process does not require a probate court’s intervention. One joint ownership scenario in Hawaii is a joint tenancy, where property owned automatically passes to the surviving owner(s) when another owner dies. This method works best for couples, so if you have a spouse or significant other and have acquired real estate, this is a smart alternative to consider. Within a joint tenancy in Honolulu, each owner must own equal shares of the assets in question.  

Another option is tenancy by the entirety, which works much like joint tenancy, but can only apply to married couples or certified domestic partners. If you’re divorced, a divorce decree or judgment can affect the awarding of Hawaii real property. So make sure to update your estate planning documents to determine what your ex-spouse is or is not entitled to after you’ve passed.

For these agreements, you’ll still need to prepare a deed or alternative conveyance document, have it signed, notarized, and recorded in the right Hawaii recording office. Following these steps will legally ratify the property transfer.

 

If you’re wondering what will happen to your assets and your loved ones after you pass, then set up a free consult with Michael Madison, Honolulu Estate Planning Attorney to talk about your expectations and wishes.