Transferring ownership after a death

[RLevy29]

My sister passed away last year and owned DVC. She was divorced but her ex was still on the contract when she passed away. She contacted member services to see how she could transfer the contract to her name and remove her mom's ex from the contract. He was all on board and my niece contacted member services to get guidance on what to do. They told her what to do and she did it. Today she received a letter that told her that since they were divorced she had to go back to the beginning and get a lawyer to go through probate. Would appreciate any advice on the best and cheapest way to do this.

 

[bumbershoot]

She contacted member services to see how she could transfer the contract to her name and remove her mom's ex from the contract.

Is "she" your niece? What did she do after the guidance DVC gave her? And who did she get the letter from?

 

[CarolMN]

Your niece will need to get advice from an attorney licensed to practice in Florida. Since the "property" is in the state of Florida, that's where probate will occur for the DVC membership. (Many people with property in more than one state will set up a trust that contains the properties to avoid the need to go through probate in multiple jurisdictions). If your sister was the sole owner of the membership at the time of her death (and the membership was not titled to a trust), probate will probably be necessary. There may be an exception to that. Some states do not require probate if the estate is small. Again, the attorney will know.

Perhaps your niece will not need to go through probate at all f if the contract was jointly titled to your sister and her ex when she died. The divorce may also play into that in some way, though. Depending on how the contract was actually titled when your sister died, the ex may now own the contract. If so, he could sell or gift the membership to her. No probate required. (I think. I am not an attorney)!

Sorry for your loss.

 

[drusba]

Unfortunately, the property most likely must go through probate in Florida unless something was sprecifcally done at the time of divorce to transfer ownership. (And no, I do not know a particular Florida lawyer you can hire.)

The property was orginally deeded as a tenancy in the entirety unless your sister and her husband specifically chose some other form of ownership (highly unlikely), meaning it was jointly owned by both your sister and her husband and, if one died, the other would automatically get ownership and avoid probate. However, the divorce changed that. By law in Florida, a divorce automatically ends the tenancy in the entirety and changes the ownership to tenants in common, meaning each separately owns a 50% interest in the property, and the subsequent death of either owner means the property is subject to probate in Florida in relation to the deceased's share of the ownership, unless something was done to change the actual ownership of the property and change the deed before the death.

 

[starry_solo]

1. Get a copy of the deed from the comptroller's office. That will control how it works.
2. Get an attorney.
3. You don't have to do probate in the state where the property was located. That's where the full faith & credit clause comes into play. Judgement (probate) in one state - as long as it deals with the property in the other state - is entitled to the same weight in the state court as if the probate occurred in the state where the property was located. Now if there was no will or trust set up, that's where things get more difficult.

 

[mustinjourney]

1. Get a copy of the deed from the comptroller's office. That will control how it works.
2. Get an attorney.
3. You don't have to do probate in the state where the property was located. That's where the full faith & credit clause comes into play. Judgement (probate) in one state - as long as it deals with the property in the other state - is entitled to the same weight in the state court as if the probate occurred in the state where the property was located. Now if there was no will or trust set up, that's where things get more difficult.

Are you sure about number 3?

http://www.alllaw.com/articles/nolo/wills-trusts/ancillary-probate-proceedings-another-state.html

As far as I know, real estate in another state cannot be dealt with by another state. The out-of-state court doesn’t have jurisdiction.

 

[mustinjourney]

Also, their divorce agreement should layout who owns what. If the divorce gave the wife the DVC property, then they can use that (along with the will) during probate to straighten things out.

 

[drusba]

1. Get a copy of the deed from the comptroller's office. That will control how it works.
2. Get an attorney.
3. You don't have to do probate in the state where the property was located. That's where the full faith & credit clause comes into play. Judgement (probate) in one state - as long as it deals with the property in the other state - is entitled to the same weight in the state court as if the probate occurred in the state where the property was located. Now if there was no will or trust set up, that's where things get more difficult.

If there is real property in Florida owned by the decedent, the property will have to go through a probate proceeding in Florida unless (a) ownership of the property automatically goes to another survivor because it was in joint tenancy with right of survivorship; or (b) the property's ownership was transferred to a trust (such as a living trust) before death. A court in another state cannot complete the probate of real property owned by a decedent in Florida. If there is a will, the process is somewhat simpler because the proceeding would be an anciliary proceeding pursued by the designated representative of the estate and you may also be able to follow, with or without a will, the Florida summary proceeding that can be used if the property in Florida to be distributed is worth less than $75,000, but you would still need a Florida attorney and actual probate filings and necessary court orders.

 

[Phatscott25]

I guess since this thread is here I'll ask a question just to get clarity. My mother and I are on all of my DVC deeds as Joints Tenants With Right of Survivorship. It's my understanding that when she passes the properties will just become mine solely without the need for probate. Is this correct? Or will I have to do something?

 

[RLevy29]

There is still a balance on the loan. If my niece pays it off who gets the deed?

 

[bumbershoot]

There is still a balance on the loan. If my niece pays it off who gets the deed?

The loan balance is also an issue in getting it redeeded. We wouldn't have been allowed to change the names if the loan had still been owed on.

But who pays the loan has nothing to do with it. Separate issues.

 

[drusba]

I guess since this thread is here I'll ask a question just to get clarity. My mother and I are on all of my DVC deeds as Joints Tenants With Right of Survivorship. It's my understanding that when she passes the properties will just become mine solely without the need for probate. Is this correct? Or will I have to do something?

As long as you are still living when she dies, the entire property will automatically become yours and will not need to go through probate. Note ,however, that the property would still be property of the estate for estate tax purposes, but, because of estate tax exemptions, that is not likely to be an issue unless your mom is very rich.

 

[drusba]

There is still a balance on the loan. If my niece pays it off who gets the deed?

Your neice's paying off the loan would get her nothing. The existence of the loan essentially makes it mandatory that a lawyer be hired and a probate proceeding for the property be started soon in Florida, because the lender is now a creditor of your sister's estate to whom notice of the death must be given. I do not know what happened at the time of divorce in relation to this property but, if a lawyer was involved and knew about the property, something specifically should have been done at the time. If nothing was done to transfer ownership rights and determine responsibility for the loan, then the two parties now actually liable for paying off the loan are your sister's estate and the former husband.

 

[Rick195275]

Is probate mandatory if the contract was signed as 2 individuals as joint tenants if one is to pass?

 

[drusba]

Is probate mandatory if the contract was signed as 2 individuals as joint tenants if one is to pass?

No, as long as the property is deeded in joint tenancy with right of survivorship, if one dies and the other is still living, the one living automatically becomes the sole owner and the property is not subject to probate.

There are essentially two kinds of joint tenancy in Florida, Joint tenancy with Right of Surivorship and Tenancy in the Entirety, which is used solely for married couples and is usually automatically deeded that way to married couples unless they request otherwise. Tenancy in the Entirity is the same as Joint Tenancy with Right of Survivorship but it adds a further protection to the couple that joint tenancy alone does not: creditors cannot get access to one spouse's interest in the property to pay debts unless both spouses are on the same debt obligation. Many but not all states allow tenancy in the entirety for real property in the state.

The issue OP has is that the property was likely deeded as tenancy in the entirety when his sister and then brother-in-law purchased the timeshare (the deeds typically state that the transfer is to the named married couple as "Husband and Wife"). By law in Florida, the divorce automatically changed that status to Tenancy in Common between OP's sister and former husband, which has no survivorship rights -- each owns a 50% interest and, if one dies, the property has to go through probate unless something was done to change the deed before death.

 

[Rick195275]

No, as long as the property is deeded in joint tenancy with right of survivorship, if one dies and the other is still living, the one living automatically becomes the sole owner and the property is not subject to probate.

There are essentially two kinds of joint tenancy in Florida, Joint tenancy with Right of Surivorship and Tenancy in the Entirety, which is used solely for married couples and is usually automatically deeded that way to married couples unless they request otherwise. Tenancy in the Entirity is the same as Joint Tenancy with Right of Survivorship but it adds a further protection to the couple that joint tenancy alone does not: creditors cannot get access to one spouse's interest in the property to pay debts unless both spouses are on the same debt obligation. Many but not all states allow tenancy in the entirety for real property in the state.

The issue OP has is that the property was likely deeded as tenancy in the entirety when his sister and then brother-in-law purchased the timeshare (the deeds typically state that the transfer is to the named married couple as "Husband and Wife"). By law in Florida, the divorce automatically changed that status to Tenancy in Common between OP's sister and former husband, which has no survivorship rights -- each owns a 50% interest and, if one dies, the property has to go through probate unless something was done to change the deed before death.

Thank you for the info. I am just waiting on my account from Disney after purchasing resale, I included my mother on the account so she could also use it. When we did the paperwork it was marked as individuals but just said as joint tenants. Never really thought about any of these scenarios araising as an issue down the road.