LAW OFFICE OF SAMUEL K.L. SUEN, LLLC
  • Home
  • Attorney Profile
  • Estate Planning
  • Probate
  • Conservatorship
  • Guardianship
  • Trust Administration
  • Blog
  • Testimonials
  • Contact

Overview of Title Tenancy  for Property in Hawaii

9/14/2012

 
     The method by which a person holds title to property in Hawaii affects how that property is distributed and taxed upon a person’s passing.  Therefore, for estate planning purposes, it is important to know the differences between tenancies and understand the ramifications they may have on an estate plan.  The following is a brief explanation of how title to property may be held in Hawaii.
     Tenancy in Severalty:  This how a single party owns property.  The party’s interest is “severed” from others.
     Tenancy in Common:  Tenancy in Common exists where two or more parties each hold an undivided, specific interest in a property.  In addition to natural persons, corporations, partnerships, trusts and estates may hold property as a tenant in common.  Each party’s interest is equal to the other tenants unless otherwise specified.  Furthermore, every party is entitled to possession of the entire property with the co-tenants.  If no tenancy is specified, tenancy in common is the default method of holding title unless otherwise provided by law.
     A tenant in common may sell or encumber her interest at any time.  The new owner then becomes a tenant in common with the other existing tenants.  Also, a party’s interest in the property is subject to the claims of that party’s creditors.  Finally, since there is no right of survivorship between tenants in common, each party’s interest will pass to his heirs/devisees as part of his estate. 
     Joint Tenancy with Rights of Survivorship:  Two or more natural persons may hold property as joint tenants with rights of survivorship.  This means corporations, partnerships, trusts and estates may not be joint tenants.  Each joint tenant holds an equal undivided interest in the property.  "Right of survivorship" means that when a joint tenant dies, his interest automatically passes to and is divided equally among the remaining joint tenants.  The intent to create a joint tenancy must be specified, otherwise it is assumed that the property is held as tenants in common.  

     A joint tenant may transfer her interest without the consent of the other joint tenants, but this will sever the joint tenancy with the other joint tenants.  Therefore, the holdover joint tenants will continue to hold the property jointly, while the new owner will own the property as tenant in common with the holdover joint tenants.
     A creditor of a joint tenant may generally satisfy his claim against the joint tenant's interest in the property.
     Tenancy by the entirety:  Tenancy by the entirety is only available to married couples, civil union partners and reciprocal beneficiaries.  While alive, each person is considered to be the owner of the entire property.  This means one party may not unilaterally convey his interest without the consent of the other.  In other words, any conveyance document must be signed by both persons.  As with joint tenancy, upon the death of one of the parties, the decedent’s interest passes automatically to the surviving party.  Another benefit of holding property as tenants by the entirety is that a person’s creditor individually cannot use the property to satisfy individual debts.  However, creditors of both parties may do so.  As explained in a previous post, Hawaii law now allows a couple’s trusts to own property (as tenants in common) while retaining the tenancy by the entirety creditor protection.
     As you can see, how property is held can affect the way it is transferred, distributed and controlled in the future.  Therefore, careful thought should be given to the method of ownership of property in Hawaii, especially for estate planning purposes.
kalua burtch
3/7/2016 01:13:50 pm

If I own a tenancy in common property that originally has 6 shares and throughout the years I have obtained 3.5 out of the 6, and is the only heir that still and has resided on the property for over 20 years, do I have more of a right to decisions made to the property and home? And am I correct in saying that if I pass, I should have a will or trust prepared to assure my husband receives the share? Its not automatic that he will receive it even though I was survived by him correct?

Harvey Ouchi
5/20/2017 04:14:17 pm

Kalua,
Did anyone respond to your post? I am very interested in what anyone had to say. Let me know. Thanks.

Kate
9/3/2017 03:52:09 pm

Does a co-owner who paid all the mortgage and taxes on the home have more claim on the home than any of the other owners, even if they are tenants in common?

D. Minakuchi
6/17/2018 06:11:42 pm

I, too, would like to know if anyone has responded this question from "Kate"? I am curious for future issues that may face.


Comments are closed.

    Author

    Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.

    Archives

    January 2017
    February 2015
    January 2015
    December 2014
    August 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    May 2012
    April 2012
    March 2012
    February 2012
    January 2012

    Categories

    All
    Abuse
    Advance Health Care Directive
    Conservatorship
    Divorce
    End Of Life
    Estate Planning
    Family Law
    Financial Planning
    Guardianship
    Intestate Succession
    Power Of Attorney
    Probate
    Probate Administration
    Real Property
    Retirement
    Tax
    Trust Administration
    Trustee
    Trusts
    Will

    RSS Feed

    DISCLAIMER:  All content and information is provided by The Law Office of Samuel K.L. Suen, LLLC and is for general informational and discussion purposes only and does not constitute legal advice.  Transmission of this information is not intended to create, and receipt does not constitute, a formation of an attorney-client relationship.    The information presented at this site is believed to be accurate when made, but may not be complete, is not updated, reviewed or revised on a regular basis.  No representations or warranties whatsoever, express or implied, are given as to the accuracy, applicability or validity of the information contained herein.  The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.  You should not act or rely on this information without consulting with a licensed attorney.
    To ensure compliance with requirements imposed by the IRS, please note that any U.S. federal tax advice contained herein is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter that is contained herein.
    Copyright © 2020 Law Office of Samuel K.L. Suen, A Limited Liability Law Company. All Rights Reserved.
Powered by Create your own unique website with customizable templates.
  • Home
  • Attorney Profile
  • Estate Planning
  • Probate
  • Conservatorship
  • Guardianship
  • Trust Administration
  • Blog
  • Testimonials
  • Contact