TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII
A BILL FOR AN ACT
relating to uniform real property transfer on death.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
uniform real property transfer on death act
§ -1 Short title. This Act may be cited as the Uniform Real Property Transfer on Death Act.
§ -2 Definitions. As used in this chapter:
"Beneficiary" means a person that receives property under a transfer on death deed.
"Designated beneficiary" means a person designated to receive property in a transfer on death deed.
"Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant and tenant by the entirety. The term does not include a tenant in common.
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
"Property" means an interest in real property located in this State that is transferable on the death of the owner.
"Transfer on death deed" means a deed authorized under this Act.
"Transferor" means an individual who makes a transfer on death deed.
§ -3 Applicability. This Act applies to a transfer on death deed made before, on, or after July 1, 2010 by a transferor dying on or after July 1, 2010.
§ -4 Nonexclusivity. This Act does not affect any method of transferring property otherwise permitted under the laws of this State.
§ -5 Transfer on death deed authorized. An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed.
§ -6 Transfer on death deed revocable. A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.
§ -7 Transfer on death deed nontestamentary. A transfer on death deed is nontestamentary.
§ -8 Capacity of transferor. The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.
§ -9 Requirements. A transfer on death deed:
(1) Except as otherwise provided in paragraph (2), must contain the essential elements and formalities of a properly recordable inter vivos deed;
(2) Must state that the transfer to the beneficiary is to occur at the transferor's death; and
(3) Must be recorded before the transferor's death with the bureau of conveyances.
§ -10 Notice, delivery, acceptance, consideration not required. A transfer on death deed is effective without:
(1) Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
§ -11 Revocation by instrument authorized; revocation by act not permitted. (a) Subject to subsection (b), an instrument is effective to revoke a recorded transfer on death deed, or any part thereof, only if the instrument:
(1) Is one of the following:
(A) A transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;
(B) An instrument of revocation that expressly revokes the deed or part of the deed; or
(C) An inter vivos deed that expressly revokes the transfer on death deed or part of the deed; and
(2) Is acknowledged by the transferor after the acknowledgement of the deed being revoked and recorded before the transferor's death in the bureau of conveyances.
(b) If a transfer on death deed is made by more than one transferor:
(1) Revocation by a transferor does not affect the deed as to the interest of another transferor; and
(2) A deed of joint owners is revoked only if it is revoked by all the living joint owners.
(c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.
(d) This section does not limit the effect on an inter vivos transfer of the property.
§ -12 Effect of transfer on death deed during transferor's life. During a transferor's life, a transfer on death deed does not:
(1) Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;
(2) Affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;
(3) Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, or even if the creditor as actual or constructive notice of the deed;
(4) Affect the transferor's or designated beneficiary's eligibility for any form of public assistance;
(5) Create a legal or equitable interest in favor of the designated beneficiary; or
(6) Subject the property to claims or process of a creditor of the designated beneficiary.
§ -13 Effect of transfer on death deed at transferor's death. (a) Except as otherwise provided in the transfer death deed, in this section, or sections 560:2-603, 560:2-706, 560:2-707, 560:2-804, 560:2-803, 560:20-702, and section 560:2-202, on the death of the transferor, the following rules apply to the property that is the subject of a transfer on death deed and owned by the transferor at death:
(1) Subject to paragraph (2), the interest in the property is transferred to the designated beneficiary in accordance with the deed;
(2) The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses;
(3) Subject to paragraph (4), concurrent interest are transferred to the beneficiaries in equal and undivided shares with no right of survivorship; or
(4) If the transferor has identified two or more designated beneficiaries to receive concurrent interest in the property, the share of one which lapses or fails for any reason is transferred to the other, or the others in proportion to the interest of each in the remaining property held concurrently.
(b) Subject to the recording provisions of chapter 502, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interest to which the property is subject at the transferor's death. For purposes of this subsection and the recording provisions of chapter 502, the recording of the transfer on death deed is deemed to have occurred at the transferor's death.
(c) If a transferor is a joint owner and is:
(1) Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or
(2) the last surviving joint owner, the transfer on death deed is effective.
(d) A transfer on death deed transfers the property without covenant or warrant of title even if the deed contains a contrary provision.
§ -14 Disclaimer. A beneficiary may disclaim all or part of the beneficiary's interest as provided by chapter 526, at the Uniform Disclaimer of Property Interests Act.
§ -15 Liability for creditor claims and statutory allowances. A beneficiary of a transfer on death deed is liable for an allowed claim against the transferor's probate estate and statutory allowances to a surviving spouse and children to the extent provided in section 560:2-102.
§ -16 Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
§ -17 Relation to electronic signatures in global and national commerce act. This Act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b)."
SECTION 2. Section 526-12, Hawaii Revised Statutes, is amended by amending subsection (f) and (g) to read as follows:
"(f) In the case of an interest created
by a beneficiary designation [
made] which is disclaimed before [ the
time] the designation becomes irrevocable, [ a] the disclaimer
must be delivered to the person making the beneficiary designation.
(g) In the case of an interest created by a
beneficiary designation [
made] which is disclaimed after [ the
time] the designation becomes irrevocable[ ,]:
a] The disclaimer of an
interest in personal property must be delivered to the person obligated to
distribute the interest[ .]; and
(2) The disclaimer of an interest in real property must be recorded in the bureau of conveyances."
SECTION 3. Section 526-15, Hawaii Revised Statutes, is amended to read as follows:
Recording of disclaimer. If an instrument transferring an interest in or
power over property subject to a disclaimer is required or permitted by law to be
filed, recorded, or registered, the disclaimer may be so filed, recorded, or
Failure] Except as otherwise provided in section
526-12(g), failure to file, record, or register the disclaimer does not
affect its validity as between the disclaimant and persons to whom the property
interest or power passes by reason of the disclaimer."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect on July 1, 2010.
Real Property; Probate
Adopts Uniform Real Property Transfer on Death Act. Allows owner of real property to designate beneficiaries to receive real property upon death of owner without requirements of probate or formalities of wills.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.