DVC Deed Question

[disneynutz]

I have been trying to find out about how to list our names on our DVC Deed. I have asked our escrow company and DVC Administration. I get different answers. I know that in Florida, if you don't take title as "joint tenants with right of survivorship", our DVC holdings will have to go through probate when I die. We have myself, DW, and DD on the deed. I also found out that all DVC deeds that we own have to be listed the same or we will be issued a new Member number. We first bought resale and the escrow company listed our names with out JTWROS. When we purchased from DVD latter, they automatically listed our names the same way.

Has anyone else dealt with this? Thanks for your help.

 

[disneynutz]

 

[CarolMN]

I have been trying to find out about how to list our names on our DVC Deed. I have asked our escrow company and DVC Administration. I get different answers. I know that in Florida, if you don't take title as "joint tenants with right of survivorship", our DVC holdings will have to go through probate when I die. ,,,(snip)....

Did a Florida estate planning attorney tell you this?

I ask because I think you are confusing who inherits your DVC holdings with what needs to go through probate.

The only way I know to avoid probate is to have your DVC contracts owned by a trust. You can't avoid probate just by titling it as joint owners WROS - unless FL has some very unique laws the other states don't. If your DD is a minor, there are ramifications of having her listed as an owner - you should be sure you are clear on those as well before proceeding.

I am not a lawyer or a real estate agent. (I work in Financial Services industry and have some knowledge re titling of assets). I think you need to consult an attorney - preferably one with estate planning expertise in the state of FL. Better to pay for the knowledge / advice on how to do what you what to do than to live with the consequences when it's too late to change it.

 

[Chuck S]

Looking through some of the DVC deeds on the Orange County site, I have not noticed the JTWROS clause. As contracts can't be divided (ie on a 200 points contract, one person can't inherit 100 points and another person 100 points) perhaps the clause isn't necessary for DVC?

Perhaps real property is different from financial holdings, like bank accounts and stocks?

 

[CarolMN]

OK, did a little googling - apparently the state of Florida does not require jointly owned property with rights of survivorship to go through probate.

I still think the OP should consult an attorney. Sounds like he/she will want to change how his/her existing contracts are titled. That will cost some $$.

 

[disneynutz]

I made the mistake and didn't research JTWROS and my reseller and DVD didn't bring it up. My fault. The reason that I am posting this is that we have a lot of DVC owners on the DIS that may not know about JTWROS and Florida probate. I have been told by a Texas Attorney that without the JTWROS should I die, even though my will gives my DW and adult DD my assets, our DVC properties will have to go through Florida probate. If this is really true it could really be a problem for fellow DVCers. I am expecting an answer from a DVD attorney tomorrow. I will post my findings.

The laws in each state may be different so don't take this information as gospel.

 

[drusba]

Jointly owned property with rights of survivorship is not part of the deceased person's estate for probate as long as the other joint owner is still alive at the time of one owner's death.

In Florida, you can have a deed say it is transfering to the two of you as joint tenants with right of survivorship and the effect will be the surviving owner automatically gets title to the whole property interest and it will not be property of the estate for probate purposes.

In Florida, a transfer to a husband and wife (that says nothing about JTWROS) is deemed to be a tenancy by the entirety. That is much like joint tenancy with right of survivorship including that title passes automatically to the survivor and thus is not deemed estate property of the deceased. It differs from JTWROS in that it has more complete spousal protection -- for example, one cannot transfer his or her interest in the property to another without the spouse also doing so (with JTWROS one party can transfer his half interest to another without permission of the other owner).

Thus you can accomplish probate avoidance by simply having the transfer be made to the two of you as "husband and wife" with or without saying anything about right of survivorship. Moreover, if the transfer is to a husband and wife, it is presumed to be a transfer by the entirety even if you do not use the words husband and wife and as long as you do not expressly specify another form of transfer, e.g., such as JTWROS. Or you can make the transfer to the two of you as joint tenants with right of survivorship which is somewhat less protective of a spouse than tenenacy by the entirety.

In your particular case because you apparently also are sticking your daughter on the deed (something I usually do not recommend), you can create confusion unless you specify type of ownership. Thus, you can use JTWROS if you want all three to have joint ownership with right of survivorship. You should be aware by doing so that if your daughter ever has creditors come after her they will be be able to put a lien on her portion of the property interest and force its sale. Moreover, if your daughter marries, her husband may be able to claim rights in any property interest she has, including upon divorce.

You should note that avoiding probate does not mean you also avoid estate taxes on the state or federal level. That depends on tax laws and applicable exemptions which apply at death regardless of whether property is subject to probate.

 

[disneynutz]

Jointly owned property with rights of survivorship is not part of the decesaed person's estate for probate as long as the other joint owner is still alive at the time of one owner's death.

In Florida, you can have a deed say it is transfering to the two of you as joint tenants with right of survivorship and the effect will be the surviving owner automatically gets title to the whole property interest and it will not be property of the estate for probate purposes.

In Florida, a transfer to a husband and wife (that says nothing about JTWROS) is deemed to be a tenancy by the entirety. That is much like joint tenancy with right of survivorship including that title passes automatically to the survivor and thus is not deemed estate property of the deceased. It differs from JTWROS in that it has more complete spousal protection -- for example, one cannot transfer his or her interest in the property to another without the spouse also doing so (with JTWROS one party can transfer his half interest to another without permission of the other owner).

Thus you can accomplish probate avoidance by simply having the transfer be made to the two of you as "husband and wife" with or without saying anything about right of survivorship. Or you can make the transfer to the two of you as joint tenants with right of survivorship which is somewhat less protective of a spouse than tenenacy by the entirety.

Great information, thank you. Looks like I still screwed up. Our deeds only have our names on them, not husband and wife, and as I mentioned my adult daughter is also listed. I reviewed several deeds on the Orange County website and it seems that most just list the names, not H&W, and not JTWROS.

 

[drusba]

I added some further comments on the three way deed above. With the three of you on the deed with no specification, a court might find it is a tenancy in common meaning no rights of survivorship and your interest goes to probate upon death. A fix may not be that difficult but you are likely going to need a Florida attorney.