Detailed Answer

Short overview: When a spouse dies, whether you can record a new deed that makes your child the owner depends on how title was held, whether there is a will, and whether probate is required under Hawaii law. This article explains the typical paths: 1) a non-probate transfer (when title already passes automatically), and 2) a probate transfer (when the estate must be administered). It lists the documents, forms, and next steps you will likely need in Hawaii.

1. First step: Confirm how the property is titled

Before you do anything, pull the recorded deed from the recorder (in Hawaii most conveyances are recorded at the state Bureau of Conveyances or in the Land Court system). The deed will show whether the decedent held the property:

• Alone (sole ownership).
• With another person as joint tenants with right of survivorship or as tenants in common.
• In a trust or via a transfer-on-death instrument (if any was used).

Why this matters: if the decedent held title as a joint tenant with right of survivorship, title usually vests automatically in the surviving joint tenant and usually does not pass through probate. If the decedent held title alone, the property will generally be part of the probate estate and will be distributed under the will or, if no will, under Hawaii’s intestacy rules.

2. If title passed automatically (e.g., joint tenancy)

When title has an automatic survivorship mechanism, you generally do not open probate just to change the name on the recorded title. Typical steps are:

1. Obtain the certified death certificate of the deceased spouse from the vital records office.
2. Prepare an affidavit (often called an affidavit of death of joint tenant or similar) that states the decedent’s death, cites the recorded deed, and identifies the surviving owner(s).
3. Record the affidavit and certified death certificate with the recorded original deed (or reference to it) at the appropriate recording office (Bureau of Conveyances or Land Court).
4. If you want your child to become owner but the surviving spouse holds fee simple title, the surviving spouse (if they are the current legal owner after survivorship) must execute and record a deed transferring ownership to the child.

Practical notes: Recording rules, acceptable affidavit forms, and required attachments vary. Contact the state recording office (Bureau of Conveyances or the Land Court) for exact filing requirements.

3. If the property is in the deceased spouse’s sole name (probate required)

If the property was solely in your wife’s name, you will likely need to administer her estate before title can be transferred to your child. Steps commonly include:

1. Locate the will (if any) and determine who the personal representative (executor) should be.
2. File a petition with the Hawaii probate court to open probate and ask the court to issue letters testamentary (if there is a will) or letters of administration (if no will). Hawaii’s probate laws are in the Uniform Probate Code as adopted by the State of Hawaii. For the statutory framework, see HRS Chapter 560: HRS Chapter 560 (Uniform Probate Code).
3. The personal representative collects assets, pays debts and taxes, and identifies heirs or devisees (people named in the will).
4. Once the estate has authority to transfer real property (usually after creditors are addressed and the court authorizes distribution), the personal representative signs a deed (commonly a quitclaim or a special/warranty deed) conveying the property to the child.
5. Record the new deed with the state recording office (and pay required recording fees and any conveyance taxes or transfer fees, if applicable).

If there is no will, the estate will be distributed according to Hawaii’s intestacy rules. Those intestacy rules are part of the Hawaii probate code (HRS Chapter 560). A surviving spouse and children may share in the estate under those rules; a court-supervised distribution will determine who legally owns the property and whether the child (or the surviving spouse) receives the property.

4. Short / small estate options

Many states allow a simplified procedure for small estates that avoids full probate. Hawaii’s probate process includes provisions for simplified administration in some circumstances (see HRS Chapter 560 for the applicable procedures). If the estate qualifies for a small‑estate procedure, you may be able to obtain authority to transfer the property with less court involvement. Check with the Hawaii probate court or an attorney to confirm eligibility and required forms.

5. Documents you will likely need

• Certified death certificate (multiple certified copies).
• Original recorded deed showing current title to the property.
• If joint tenancy: affidavit of death of joint tenant or similar document acceptable to the recorder.
• If probate: will (if any), petition for probate, letters testamentary/administration issued by the court.
• New deed conveying title to the child (signed by the person with authority to convey: surviving joint tenant or personal representative), notarized.
• Any transfer tax, recording fee, or affidavit forms required by the Bureau of Conveyances or Land Court.
• Title search report or title insurance (recommended to confirm liens or encumbrances).

6. Other legal, tax, and practical considerations

• Mortgages and liens: If the property has an outstanding mortgage, the mortgage lender’s approval or payoff may be required before a clean title transfer can occur.
• Conveyance or documentary taxes: Transfers after death can have different tax consequences. Confirm whether a conveyance tax is due on the transfer and whether an exemption applies.
• Property taxes: Notify the county real property tax office to change ownership and discuss any reassessment or homestead exemptions.
• Title insurance: Consider obtaining a title report and issuing a new title insurance policy in the child’s name for protection.
• Timing: Probate in Hawaii can take months (longer for complex estates). Plan ahead if deadlines or sales are involved.

7. Who should sign the new deed?

If title vested automatically in the surviving spouse (after survivorship), the surviving spouse signs the deed transferring ownership to the child. If the property is part of the probate estate, the personal representative signs the deed on behalf of the estate once the probate court has authorized distribution. The signatory must have authority (survivorship ownership document or court-issued letters) and must sign the deed in front of a notary as required for recording.

8. Where to record the deed in Hawaii

Hawaii records property documents through the state’s recording system (Bureau of Conveyances and the Land Court for registered property). Check the recording office’s website or contact them for the correct filing procedures, acceptable forms, recording fees, and whether electronic filing is available.

9. When to hire an attorney

Consider hiring a probate or real estate attorney if any of the following are present:

• The title situation is unclear (disputed ownership, ambiguous deed language).
• There are multiple heirs or a contested will.
• There are large debts, complex tax issues, or commercial property.
• You want help preparing a legally sufficient deed, affidavit, or probate petition.

Even when probate seems straightforward, an attorney or experienced title agent can help avoid common missteps and ensure the recorded deed is acceptable for title insurance and future financing.

Helpful Hints

• Start by ordering a certified copy of the death certificate right away—recorders and courts require it.
• Obtain a copy of the recorded deed early to determine exactly how title is held.
• If you are the surviving joint tenant, you still may want to record an affidavit of death and then execute a new deed to your child (if that is your plan) so the public records reflect the transfer.
• If the estate might qualify as a small estate, contact the probate court clerk or review HRS Chapter 560 to see whether simpler procedures apply.
• Watch for mortgage and lien issues; a new deed does not remove mortgages—mortgages survive until paid or released.
• Keep originals and multiple certified copies of court documents and the death certificate—recorders often require originals or certified copies for filing.
• Record the new deed promptly after it is signed and notarized to establish clear chain of title.
• Ask the recording office for the exact language they require on affidavits of death or survivorship—each office may have preferred form language.
• Consult a probate or real estate attorney when in doubt—laws and procedures change and mistakes can be costly.