The attorneys at Finn Law Group are often asked a question a lot like this:
“If I still own my timeshare interest at the time of my death, will my children inherit my interest? Will they be required to assume the maintenance fees and/or capital improvements imposed by the resort?”
Hopefully, this writing can address this common – and complicated – issue and provide some assistance. But first, a note. Although I’ll try to make the subject and response as user friendly as possible, please accept my advance apology as it is, ultimately, a fairly complex legal issue involving state statutes that require some interpretation.
Therefore, like most tricky legal questions, the ultimate answer is: “it depends”.
Let’s start our analysis with the prevailing legal statutes in effect for the appropriate state. Why do I say “the appropriate state?” Because if your timeshare interest is grounded in real estate, the statutes will depend upon the state the property is located in; if it’s a “right to use” interest, involving no real estate ownership, it’ll more likely be the state of your residence. Sometimes the distinction between real and personal property is a tad murky, so the best rule of thumb is whether the ownership is “deeded” or not.
In writing this, I’ll be referencing Florida state law, as that’s where I’m located and where many of our readers presumably purchased their timeshare interests. I’m also appending this article with the table of contents of a 50 state survey by the International Claim Association indicating which states have adopted the Uniform Disclaimer of Property Interests Act (UDPIA), but please note this survey was completed in 2009, so you’ll probably need to update your research if you’re trying to find out about a state other than Florida. I think it’s fair to assume that if your state is listed in the Appendix as a UDPIA state (like Florida), you can conclude that it still is a UDPIA state today.
The UDPIA sets out specific procedures for disclaiming a property interest, typically completion, execution, and recordation of a legal document called a Disclaimer of Interest. Its resemblance to a deed is not merely coincidental, as, if the Disclaimer of Interest is executed in the presence of two witnesses (one a notary,) the County Register of Deeds will accept same for recordation just like a deed (provided you’ve supplied a specific legal description of the interest so that they will know where exactly to file it).
So with the jurisdiction hurdle addressed, let’s get back to the question of how one disclaims their interest – and thereby avoids inheriting same. In Florida, for a disclaimer to be effective it must be in writing and describe the interest being disclaimed, as well as signed by the person making the disclaimer and properly witnessed. In order to put all persons on notice of your disclaimer relating to real estate, the Disclaimer of Interest must contain the legal description of the timeshare interest, and must be filed for recording in the office of the clerk of the court in the county where the timeshare interest is located. (For more on this – including case law and statutory citations – don’t be afraid to send along an inquiry).
A sample of a Disclaimer of Interest is available below, and presumes the transfer to the disinterested party has recently occurred and that a probate proceeding has been filed.
This begs a core issue question – as to whether one can disclaim prior to inheriting. The short answer is probably not, since your interest doesn’t become transferable until it actually has a legal existence, which doesn’t occur until the estate is a legal reality (i.e., the benefactor is recently deceased)
Now I fear I’ve raised as many issues as I’ve resolved. The questions remaining are myriad. For example, “Do I, as one who will inherit a timeshare interest, really have to wait until the issue is staring me in the face to try and fix it?”
For those of you “bottom line” folks who don’t care to know the finer points, let’s cut to the chase: Inheriting a timeshare interest is indeed completely preventable – with some major caveats. To better deal with these practical real life issues, I can provide you the lawyer’s version of “CliffsNotes,” a cheat sheet if you will, to get you through these metaphorical midterm exams. Here goes:
Practical pointer #1:
If you’re a timeshare owner reading this, it means you’ve probably decided that timeshare ownership is not a financially sound idea and you’re presumably already taking steps to get rid of it. Let’s say that it takes six to eight months, on average, to dispose of an unwanted timeshare. Therefore, all you have to do is to make it through that period, and you’ll be able to successfully deal with your problem through avoidance and aggressive legal action!
Practical pointer #2:
Afraid of a loved one inheriting your timeshare interest? Make sure the will or trust in question does not specifically devise the timeshare interest to any specific beneficiary or devisee (named heir). Legal disclaimer issues aside, as a practical matter, in the absence of a resort being able to tie the bequeathal to a specific named heir, it cannot easily attempt to litigate the issue of whether a nonspecific and unnamed heir or beneficiary can be legally required to assume this burden.
In other words, if the will or trust does not specifically single you out as the selected recipient of this timeshare interest, and unless you thereafter actively acknowledge your willingness to assume this interest to the resort, you are most likely home free (to a 98.9% probability factor)!
Keep all of this in mind, and don’t hesitate to drop us a line with any further questions, and you won’t just pass the midterm – you’ll have dodged a major bullet!
– Michael D. Finn, Esq.