Will my kids be stuck with my Timeshare when I die?

Timeshare in Probate

OK, the legal stuff is out of the way. So what exactly is probate? Probate is the court process to determine the new owners of property after an owner's death. If someone dies and that person was the only owner of the time share, who now owns it? That's what a probate judge is going to decide. "Ah!", you say, "I have a will!". Doesn't matter, it's still going to Probate Court. Why?

A will gives your intentions of to whom you want things left to. It is not necessarily the legal means to actually do so. Your time share will still need to go to a probate judge in the state in which the time share sits. Now it's not really all that bad. Normally the judge looks at the will and doles out the property according to how the will reads. Case closed except for some paperwork. Of course, if the will is contested, all bets are off.

We get calls from family members all the time who state they have been named Executor of an estate and that a time share was left to the estate. Possibly there was no will. They want to sell it, turn it into cash and divide the money. First thing we ask is if the time share has gone to probate yet. If the answer is "no", we can't do anything. The reason is that someone has to sign the listing agreement to sell the time share. They'll then have to sign documents and a new deed. Since the owner is now deceased, who has the power to sell it and sign the paperwork? Right now, no one. In this case the probate judge would give the Executor the legal power to sign documents and sell the property. But until that legal power is granted, nothing can happen. And I mean nothing. No one can even use it in any fashion. However, if a maintenance fee bill comes due, it still must be paid! So it's best to get these things handled in short order.

There's a few ways. First, if more than one person (a husband and wife is most common) is on the title, the property automatically is now owned by the surviving party. No probate needed. If that person sells it at some time in the future they'll only need a copy of the death certificate if the deed still has the deceased's name on it.

Or, you can add the name of an adult child to it. Same thing happens. You don't necessarily want to add a child who is not yet of legal age because that person cannot sign legal documents.

Then, you can get a bit fancier and put the time share in a Trust. This will also avoid probate. This gets a bit more complicated and here you should definitely seek the advice of an attorney or estate planner to investigate this option further as there are many different kinds of Trusts available!