DVC Probate Situation

[rosonj071821]

Here is the backstory and I wanted to see if anyone has been in a similar situation. My dad passed away last year in January. He has 6 different contracts with a total of 720 points. He had no will and did not list any beneficiaries. I have already started probate in the state of Florida and am currently going through the process. We currently reside in Wisconsin. My mom is also listed on the contracts as a co-owner. They were officially divorced 8 months before he passed away. In the divorce decree, it clearly states my dad was to get sole ownership of the DVC timeshare. Of course, he did not take her off the title and deeds in time which makes things more complicating. My lawyer states he is almost 100% sure she will not get any of the timeshare but will need her cooperation to take her off the titles and get it solely in my dad's name which then would be transferred over to my Brother and I. We plan on keeping the DVC Timeshare. What is everyone's thoughts? My mom claims it is still hers and she wants to sell it. Also, he had one contract in South Carolina at Hilton Head. Do I need to open up a Probate in the state of South Carolina as well? Thank you

 

[DonMacGregor]

Here is the backstory and I wanted to see if anyone has been in a similar situation. My dad passed away last year in January. He has 6 different contracts with a total of 720 points. He had no will and did not list any beneficiaries. I have already started probate in the state of Florida and am currently going through the process. We currently reside in Wisconsin. My mom is also listed on the contracts as a co-owner. They were officially divorced 8 months before he passed away. In the divorce decree, it clearly states my dad was to get sole ownership of the DVC timeshare. Of course, he did not take her off the title and deeds in time which makes things more complicating. My lawyer states he is almost 100% sure she will not get any of the timeshare but will need her cooperation to take her off the titles and get it solely in my dad's name which then would be transferred over to my Brother and I. We plan on keeping the DVC Timeshare. What is everyone's thoughts? My mom claims it is still hers and she wants to sell it. Also, he had one contract in South Carolina at Hilton Head. Do I need to open up a Probate in the state of South Carolina as well? Thank you

It will be interesting to see. Since the marriage dissolution clearly (?) states that your father was to retain ownership of the contracts, and the dissolution predates his passing, then it would stand to reason that your mother is legally bound by the final divorce judgement signed by the court. It's not uncommon for "housekeeping" like title transfers, quitclaim deeds, etc. to follow after a divorce is finalized, as many of those are often dependent upon what the court's final ruling is.

 

[Newbie500]

Sorry for your loss.

If the divorce decree clearly states that your dad was to get sole ownership of the DVC timeshare then there should have been some language in the decree requiring your mom to facilitate the transfer. If no such language exists, perhaps the Probate Court could be asked to issue such an order which could then be served upon your mom. If not, then your lawyer might have to file a separate lawsuit to enforce the decree. I doubt that DVC would take her name off title based solely upon the decree but stranger things have happened. If both parents are listed as co-owners, neither one can sell without the other unless they were Joint Tenants with Rights of Survivorship. I would verify that with a letter to DVC giving them notice of your dad's passing.

Any real estate located in a state other that the resident state of the decedent usually requires a separate (ancillary) proceeding in that other state's probate court.

Hope this helps.

 

[DonMacGregor]

I doubt that DVC would take her name off title based solely upon the decree but stranger things have happened. If both parents are listed as co-owners, neither one can sell without the other unless they were Joint Tenants with Rights of Survivorship. I would verify that with a letter to DVC giving them notice of your dad's passing.

OP can also go to the OC Comptroller and see how the property was deeded.

 

[erionm]

OP can also go to the OC Comptroller and see how the property was deeded.

Only for the DVC Resorts at WDW.

 

[DonMacGregor]

Only for the DVC Resorts at WDW.

True, that would require a similar search of Beaufort County records, and I'm not sure what all is available online. The OC Comptroller is at least a start for the WDW contracts. Deeds are public records, so whether an image can be viewed online, or if a request is required, my point was simply that the information can still be obtained without going through Disney.

 

[HookdonWDW]

I see the bigger problem being that he left no beneficiaries. Without that, it might open the door for your mom to claim that despite the court order, he didn’t remove her from the title because he planned for her to revert to the owner after his passing. This would be a lot easier if you could come to an agreement as a family.

 

[Jwaire]

I'm sorry for your loss. I'm also sorry you are having to go through this with such a close family member.

It may be worth contacting Member Administration and letting them know what is happening and notify them of your father's death. They can't give you legal advice, but at least they would be aware there's an issue since this is going to take time to sort out and there's the problem of late dues, etc.

 

[rosonj071821]

I see the bigger problem being that he left no beneficiaries. Without that, it might open the door for your mom to claim that despite the court order, he didn’t remove her from the title because he planned for her to revert to the owner after his passing. This would be a lot easier if you could come to an agreement as a family.

Yes, he left no beneficiaries but once the divorce is finalized, everything is null and void between the spouses. The divorce decree is your legal binding document and must go off of that. A good example was my Dad's IRA. My mom was listed as the beneficiary (he never changed it) but since their divorce was already finalized and he passed away, that is null and void which then goes to your next of kin which would be my brother and myself. My brother and I ended up splitting his retirement IRA even though my mom was listed as beneficiary. She didn't get any of it. I have contacted member services and they are aware of everything. I am currently going through probate in the state of Florida but it seems to take forever. It would be nice to come to an agreement with my mom but she isn't cooperating with my Brother and Myself. She wants to sell everything for the money which she can't do legally anyways otherwise we could sue her for that. We want to keep it. It was my dad's passion and we want to keep that going obviously. It is sad it has come to this but we have to do what we need to do. I have all the deeds, what am i specifically looking for in those deeds or what kind of language am I looking for? Thanks

 

[DonMacGregor]

I have all the deeds, what am i specifically looking for in those deeds or what kind of language am I looking for? Thanks

You (or more correctly, your lawyer) are looking for the tenancy description. Some examples might be:

Single Person (not married)
A married person (only one person buying the property)
Husband and Wife (if husband and wife are purchasing property)
Joint Tenants with Rights of Survivorship, (two or more people, with rights of survivorship)
A Living/Family Trust
A Corporation
A Married Couple, Joint Tenants with Rights of Survivorship

The legal ramifications of each should be directed to your attorney.

 

[rosonj071821]

You (or more correctly, your lawyer) are looking for the tenancy description. Some examples might be:


The legal ramifications of each should be directed to your attorney.

All it says on all the deeds is Husband and Wife. Nothing about joint tenants with rights of survivorship.

 

[Orsino]

I am currently going through probate in the state of Florida but it seems to take forever.

I don't have insight into Florida, but my dad's estate just cleared probate in Pennsylvania. It took two years.
Also, he died before COVID was a thing. My understanding is that probate is even slower now due to COVID slowing things down and there being more estates in the queue.

 

[DonMacGregor]

All it says on all the deeds is Husband and Wife. Nothing about joint tenants with rights of survivorship.

When a deed recites two spouses in title followed by language such as “husband and wife” (or “as tenants by the entirety” or “as spouses”) the parties are in title as tenants by the entirety which means they own undivided and equal interests in the property and have rights of survivorship upon the death of one spouse.

That's the "plain English" definition, but as you have said, they were legally divorced and no longer legally spouses, so that places the whole rights of survivorship mess smack dab in the hands of competent legal counsel.

 

[rosonj071821]

That's the "plain English" definition, but as you have said, they were legally divorced and no longer legally spouses, so that places the whole rights of survivorship mess smack dab in the hands of competent legal counsel.

What does that mean? In the hands of competent legal counsel. Are u saying the divorce decree means nothing then. Thank you

 

[DonMacGregor]

What does that mean? In the hands of competent legal counsel. Are u saying the divorce decree means nothing then. Thank you

I said nothing of the sort. It means when they signed the deed as spouses, they likely had rights of survivorship, however they were subsequently divorced and no longer legally spouses, and that divorce decree carries legal weight. Because the deeds weren’t changed prior to your fathers passing to something like “John Doe, a single man” or an appropriate legal alternative, you’re just going to have to jump through some more hoops. I think any other questions should be left to a Florida admitted probate lawyer, that’s all.

 

[rosonj071821]

I said nothing of the sort. It means when they signed the deed as spouses, they likely had rights of survivorship, however they were subsequently divorced and no longer legally spouses, and that divorce decree carries legal weight. Because the deeds weren’t changed prior to your fathers passing to something like “John Doe, a single man” or an appropriate legal alternative, you’re just going to have to jump through some more hoops. I think any other questions should be left to a Florida admitted probate lawyer, that’s all of

Ok. Thank you very much

 

[lpereira]

There are 2 ways you can go about this. First (probably easiest) gather your father's assets and liabilities with a fair valuation of the dvc contract. 50% of that is what she could get. The assets and liabilities aren't her problem. But broach those with her anyway.
Offer her the money. Because...... How many years ago did they divorce? After a certain number of years if the judgement wasn't enforced and he made no effort to enforce it you are going to have to fight her for it. You might lose. You may spend more money than it's worth. It may be tied up for years. And some more years beyond that. Probate is slow and dvc contracts expire.
At a minimum consult a liscensed Florida (assuming they divorced in Florida) divorce attorney about the property. Ideally you to pay to consult a divorce and probate attorney.


Edit: I just saw the 8 months. So the length of time to enforce it still good. But the advice still applies. Fight her or pay her some. Your choice. Also 2hat vie does the relationship with her hold. Don't answer me. Answer that one to yourself.

 

[rosonj071821]

There are 2 ways you can go about this. First (probably easiest) gather your father's assets and liabilities with a fair valuation of the dvc contract. 50% of that is what she could get. The assets and liabilities aren't her problem. But broach those with her anyway.
Offer her the money. Because...... How many years ago did they divorce? After a certain number of years if the judgement wasn't enforced and he made no effort to enforce it you are going to have to fight her for it. You might lose. You may spend more money than it's worth. It may be tied up for years. And some more years beyond that. Probate is slow and dvc contracts expire.
At a minimum consult a liscensed Florida (assuming they divorced in Florida) divorce attorney about the property. Ideally you to pay to consult a divorce and probate attorney.


Edit: I just saw the 8 months. So the length of time to enforce it still good. But the advice still applies. Fight her or pay her some. Your choice. Also 2hat vie does the relationship with her hold. Don't answer me. Answer that one to yourself.

Thank you. My brother and I are hoping she will just cooperate. Were prepared if she doesnt. When the divorce happened, she wanted no part of it and why she said he could have it in the divorce. Now that he passed away, of course she now wants it so she can sell it for the money. It is crazy to think us kids have to deal with this with our own Mom.

 

[Jwaire]

I think that's great you're trying to carry on your father's love for Disney/DVC. Just out of curiosity, which resorts did he purchase points at and how long ago? You hear about these people that paid $48 a point for Old Key West back in 1991 pre-construction. You don't have to get specific if it matters. That's just amazing to me. 720 points would be perfect to split between siblings. I wish you the best luck!

 

[rosonj071821]

I think that's great you're trying to carry on your father's love for Disney/DVC. Just out of curiosity, which resorts did he purchase points at and how long ago? You hear about these people that paid $48 a point for Old Key West back in 1991 pre-construction. You don't have to get specific if it matters. That's just amazing to me. 720 points would be perfect to split between siblings. I wish you the best luck!

Bought back in 94 at old key west. Has a contract at Hilton Head when that opened which have never stayed at. Bought into Vero soon after that opened. Newest one was AKL in 2011 or 12 I believe. We basically grew up at Old Key West so it is a special place to my brother and I. We used to go 3 to 4 times a year and were forever grateful to our Dad for giving is that experience. A ton of memories at Disney for us.