How Surviving Joint Tenant Can Avoid Probate of Hawaiian Timeshare

On the death of surviving joint tenant a timeshare will go through probate. Deed and Record is a website for Hawaiian Timeshare owners to avoid probate.  Probate is the transfer of ownership from the decedent to living heirs under the supervision of the probate court of Hawaii.  Probate is costly, time consuming and complicated.  Often heirs unable to cope with burden and cost of probate surrender or walk away from the timeshare.

The surviving joint tenant can avoid probate. Options are; transfer the timeshare to children or relatives, add a child or relative as owner or transfer the timeshare into a living trust.

Regardless of the choice made the first step is to report the death of the joint tenant to the State of Hawaii. Reporting is done by ‘affidavit death of joint tenant.’ The affidavit is made by the surviving joint tenant. The affidavit and an original death certificate are recorded with the Bureau of Conveyances.

The surviving joint tenant can now transfer the Hawaiian timeshare to children, friends or relatives as owners by quit claim deed.  A ‘quit claim deed’ transfers property ‘as is.’ Quit claim deeds do not contain any implied warranties of debt outstanding or good title. An owner who ‘quit claims’ real property simply conveys whatever ownership interest he or she has along with any debt or loans secured by the property. A quit claim is the easiest and cheapest way to transfer ownership between parties who personally know each other.

 When transferring or adding relatives the survivor does gives up control over the timeshare. And the transfer or addition is a gift.  It is advisable for the survivor to consult with his or her tax advisor on tax consequences, if any, for gifting.

Another way for the survivor to avoid probate is with a living trust.  The trust is like a Will but avoids probate and the survivor maintains control of his or her assets. The trust identifies who is to receive the assets and who is to distribute the assets. The person who is to distribute the assets is referred to as the Successor Trustee.

To avoid probate the Hawaiian timeshare is transferred into the trust while the owner is living. The transfer is with a quit claim deed from the owner to the owner as trustee of his or her trust.  On the death of the timeshare owner the Successor Trustee files an ‘affidavit death of trustee.’

The affidavit authorizes the Successor Trustee to act on behalf of the trust. The Successor Trustee next files a quit claim deed from the trust to the heir of the Hawaii Timeshare.  All documents can be prepared in one day compared to one year for probate.

Posted on Apr 19, 2013

How to Avoid Probate

Owners who want their loved ones to inherit the time share need to plan ahead to avoid probate. Ideally, ownership should be in the name of trust. But if the owner does not have a trust, joint tenancy is an option. To create a joint tenancy, the owner adds another person on title as a joint tenant. The person added is the heir to receive the time-share on the death of the original owner. In joint tenancy the person who dies has her or her ownership interest disappear and the survivor is the sole owner.

Normally adding a joint tenant is not a good idea. The joint tenant’s creditors and spouse have access to the property and the cooperation of the new joint tenant is needed for any sales or borrowing. As a result, the owner gives up control. But because of limited marketability and low dollar value of a timeshare the risk of loss may be outweighed by the ease of transfer.

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Posted on Feb 5, 2013

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