Hawaii: Asserting a Right of Survivorship to Claim Foreclosure Surplus Funds

Detailed Answer

Short answer: Possibly — but it depends on who owned the property when the sale occurred, how title was held, and whether survivorship transferred full ownership before the foreclosure sale. Simply claiming a “right of survivorship” on a deed does not automatically entitle you to a larger share of surplus funds unless the law and the recorded documents show you owned the property at the time the court or sheriff distributed the excess proceeds.

This explanation assumes typical Hawaii practice for judicial sales and title transfer. It is educational only and not legal advice. For a binding answer about a particular case you should consult a Hawaii attorney.

How survivorship works in general

When two or more people hold title as joint tenants with right of survivorship (JTWROS), the surviving joint tenant(s) automatically own the decedent’s share the moment the decedent dies. That transfer usually happens outside probate, and the surviving owner’s interest becomes full legal title if the transfer is effective and recognized by recording requirements.

Why timing matters for surplus funds

Surplus funds from a foreclosure or forced sale are distributed according to the court’s orders and the law governing who held legal or equitable title at the time of sale. Key timing scenarios:

• If the decedent died before the sale and the survivorship right passed full title to you before the sale, you generally stand in the decedent’s shoes and may be entitled to the surplus as the sole owner.
• If the decedent died after the sale, the decedent’s interest at the time of sale controls distribution. A later death that triggers survivorship will not increase your share of surplus that was distributed based on the pre-death ownership.
• If title was held as tenants in common (no survivorship language), the decedent’s share passes under the decedent’s will or by intestacy — survivorship does not apply.
• If the foreclosure extinguished junior interests before any survivorship transfer could take effect, you may not recover more than the law allows. Some foreclosure sales extinguish certain owner interests depending on the lien priority and type of sale.

What the court or clerk will look for

To evaluate a claim to surplus funds based on survivorship, the court or clerk will typically require:

• A recorded deed that shows the form of ownership (words like “joint tenants with right of survivorship” or similar language).
• Evidence of the date of death (certified death certificate) to confirm whether the death occurred before or after the sale.
• Recorded documents showing whether title passed prior to the sale (e.g., a recorded affidavit of survivorship, or other recorded transfer documents recognized under Hawaii law).
• The foreclosure case file and sale order to determine when and how surplus is to be distributed.

Practical steps to assert a survivorship claim to surplus funds in Hawaii

1. Obtain the foreclosure case number and court file (look up the Hawaii circuit court that handled the sale).
2. Check the exact sale date and the clerk’s order about surplus distribution.
3. Pull the property’s chain of title from the Bureau of Conveyances (Oahu) or the appropriate island land-records office to confirm how title was held and whether survivorship language appears in the deed.
4. Gather proof: certified death certificate, recorded deed, affidavits, and any recorded affidavit of survivorship or other documentation that the transfer occurred before the sale.
5. File a formal claim with the court or submit required documents to the clerk or sheriff handling surplus distribution. The local court rules or the sale order will show the proper procedure.
6. If the claim is contested, consider asking the court to resolve ownership or file a quiet-title action if ownership is disputed.

Common problems and defenses you may face

• The deed may not actually create a survivorship interest (words matter). If the deed created a tenancy in common, survivorship will not apply.
• If the foreclosure sale occurred while the decedent was still alive, the decedent’s interest at the time of sale controls — survivorship after the sale usually does not change distribution of surplus.
• Creditors, subordinate lienholders, or other claimants may have priority to surplus funds under the court’s order.
• Missing or poorly documented transfers make claims harder to prove; unrecorded affidavits may not be sufficient.

Where to look in Hawaii law and court practice

Hawaii’s statutes, court rules, and the specific order in the foreclosure case determine procedure and priority for surplus funds. For statutory text and local rules, start with the Hawaii Revised Statutes and the Hawaii Judiciary website:

• Hawaii State Legislature — Hawaii Revised Statutes: https://www.capitol.hawaii.gov/
• Hawaii Judiciary (court contact and civil procedures): https://www.courts.state.hi.us/

When to get a lawyer

Talk to a Hawaii attorney if the surplus is substantial, if multiple people claim the same funds, if records are unclear, or if the foreclosure sale or distribution deadlines are contested. An attorney can help prepare proofs, file the right pleadings, and protect your claim.

Disclaimer: This article is educational only and does not constitute legal advice. It explains general principles about survivorship and surplus-fund claims in Hawaii. For advice tailored to your situation, contact a licensed attorney in Hawaii.

Helpful Hints

• Check the deed language first: look for “joint tenants” and explicit “right of survivorship” wording.
• Confirm the date of the foreclosure sale. The owner of record on that date usually controls surplus distribution.
• Obtain certified copies of the deed and the decedent’s death certificate and have them ready when you contact the court.
• Visit the clerk of the court that handled the sale to learn the exact procedure and any deadlines for filing a claim to surplus funds.
• Record any affidavit of survivorship or transfer promptly if the survivorship transfer occurred before the sale but was not recorded.
• Preserve originals and get certified copies of all documents; courts and title offices prefer certified evidence.
• If multiple claimants appear, consider mediation or hire counsel — disputes over surplus funds can escalate quickly.