Question on what happens to DVC if owner passes away

wdwfanatic316

DIS Veteran
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Aug 29, 2008
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I have made an offer on a DVC resale contract, and when filling out the paperwork, I had a question as to what I mark for the tenancy part of the agreement. I am married, but am only putting the title/deed in my name. My contact with the closing company said that I should mark "A Single Person," which is fine. However, she also said that if something were to happen to me, my contract would have to go through probate in the state of Florida, even if I create a will stating what I would like to happen to the contract (meaning my husband would have to hire a probate lawyer from the state of Florida). So, my question is, has anyone had any experience with this? Is there any way to avoid this (besides staying alive until after 1/1/2042)?

Thanks in advance! :thumbsup2
 
What you are buying is an interest in real estate. If you own a home, you should think of it in the same way when it comes to probate, estate taxes, and leaving it to others. You can in your will designate to whom it goes. You can set up a trust to be the purchaser and owner with you as the beneficiary of the trust during your life and then designate a recipient upon death (that could avoid probate). Note, because so many say it people often think avoiding probate must be done or otherwise the entire world will be screwed up after you die. It is not really the nightmare many think. However, it can be often advisable to have many assets transfer without the formality of probate both so they can be used by others quickly after a death without any dispute over such use and you avoid some of the legal costs of probate. It is also advisable when the real estate is in a state different from the one you live in and you want to avoid another state's probate for that asset.

The "tenancy" question is asking you how you want the deed. The options are usually:

(a) You are buying it your name only and thus likely mark the single person only, which means the deed will be in only your name, and since you would be the only person on the sale contract and the deed, DVC would put only your name in the system and only you could make reservations, pay dues, transfer points, all other things that relate to ownership. Note, even if you do it that way, if you are married, it is likely your spouse can claim an interest in the property. That arises because you are married, and to avoid it there may have to be some agreement with the spouse, such as a pre-nuptial or one set up for this transaction, that expressly prevents that. In other words, you cannot assume that just because you put it in your name that your spouse has no control over what you do with it and has no rights in it. If, for example, you were to die and will that property to someone other than your spouse, that could be the creation of a costly probate dispute as to who should get the asset. In any event, the asset would go through probate. You could potentially avoid probate (but not any estate taxes) by setting up a trust that becomes the purchaser of the property and the named owner on the deed and under which trust you would have control and use of the property while you are alive and then name a recipient beneficiary of the asset who gets the use after you die. Note, that could avoid probate but it still does not avoid the issue of your spouse being able to claim an interest. In fact, if your intent is to assure that this asset is yours only and not your spouse's then you really need to start thinking about talking to a lawyer, before you buy, to set up anything that is necessary to accomplish that goal because you are not going to accomplish that goal by just buying it in your own name.

(b) You decide instead of buying only in your name that you should purchase with your spouse's name on both the contract and deed. In that case, you would likely want the deed designated in both your names as "husband and wife" or the more formal term "tenancy in the entirety" if that is one of the options on the form. That would result in joint ownership and if one dies, the other automatically becomes the owner, without probate (but there are still estate tax issues). Moreover, that kind of ownership creates limits to what a creditor can get access to in legal proceedings if one of you becomes indebted to a creditor and fails to pay amounts due the creditor. Tenancy in the entirety often prevents the creditor from being able to seize the asset and force a sale.

(c) You could do the same as (b) but instead designate the deed as "joint tenancy with right of survivorship" if that is one of the choices in which case everything in (b) would be the same except that now the creditors of one spouse could seize the interest of that indebted spouse and likely force sale.

(d) You could decide, and this is highly not recommended, to have both husband and wife on the contract and deed and designate it as "tenancy in common" if that or something similar is one of the choices. That would be a positive designation that your intent is to have you own half the property and your spouse the other half and there are no rights of survivorship -- one dies, the interest goes to probate and half that property is going to go to whomever the deceased says it goes to and the other half stays with the surviving spouse, and the net result is likely probate disputes and ultimately a forced sale of the property interest.
 
You really need to consult an attorney.

The only way I know for a single owner to avoid probate is to put the membership into a trust.

You can change the deed after the purchase, but it will cost you some money as you will have to get another ROFR waiver from Disney (free) and redo & re- register the deed.
 
When my husband and I purchased DVC in 1997, we had no idea that he would pass away suddenly in only 3 years. We purchased jointly, both named on the deed and also both named on the financing. We did not give any thought to premature death.

After he passed, I contacted DVC. They were able to remove his name from their records, and allowed me to pay off the remainder of the loan repayment plan. That deed also still has my name at that time, I have since remarried. I will leave it as is until such time as I either sell it or deed it over to my children.
 

Thanks for the responses! This purchase brings up a lot of planning questions that we all probably need to think sometime. I think for now I will just keep my name on the deed, and possibly in the future set up an estate.

One thing I wanted to say (just because I don't want anyone to get the wrong idea) is that I'm not trying to keep the ownership of the DVC away from my DH, it's just that he's not really into Disney :scared: (yes, I still love him anyway!) so I figured I would just keep it in my name only.
 



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