Any tips on estate planning for DVC?

Jlo85

Mouseketeer
Joined
Aug 17, 2022
We are a family of 4 who own a couple resale DVC contracts. We are about to meet with a lawyer about getting a will setup.

We will ask the lawyer about this, but wondering if anyone has any tips about how to manage DVC for estate planning? Especially if we will likely add more contracts over time?
 
Definitely talk to your attorney about titling options, and ask about ways to structure it to avoid having your executors needing to probate the estate in FL/HI in addition to your home state.
 
Ask your lawyer if a revocable living trust would work for you.

If you do not live in the state in which your home resorts are located, a trust would avoid the need for your heirs to go through probate in the non-residential state(s). It will probably be more expensive than a Will, but your heirs will avoid the hassle of going through probate, which can also be expensive. There are other advanatges of a trust over a Will, but your lawyer should be able to help you decide what is best for you..
 
If objective is to avoid probate after the named owners die, which for any real estate always must occur in the state where the property is, then there are two options to discuss with the lawyer:

1. Possible Deed Transfer.You mention family of four, so I assume there are two children. If the children are adults (18 or over) and are the expected heirs to the DVC properties, you can redo the titles (deeds) to property in each contract by having the parents transfer ownership of the property to the parents plus one or more of the children, to be held in "joint tenancy with right of survivorship." If the titles are currently in the names of the husband and wife, they currently likely have a form of joint tenancy called "tenancy by the entirety," but that form of joint tenancy can apply only to a married couple. If you do a transfer where the parents and the children are named on the deeds as joint tenants with right of survivorship, that would mean when any one person dies, the remaining owners retain 100% ownership of the property, with the result that probate is avoided until the last person named on the title dies.

There is a cost involved in doing the deed transfers, as new deeds need to be drafted and filed with the applicable government agency that keeps deeds (in Orlando, the Orange County Comptroller). That can actually be done without an attorney as title companies where the property is located usually provide the services needed to accomplish the deed changes.

Note, that if there is currently a mortgage on the contracts, the change cannot really be done absent paying off the loan. Also, adding others to the deed means those persons become members just like you and can make and change reservations, and are equally responsible to pay dues. There is also a debt risk added to the property in that if any of the added owners face serious debt problems in the future, a creditor could force the sale of the property to collect money owed by the debtor.

2. Living Trust. The second method of avoiding probate is actually something that should be considered not just for the DVC property but for all property the owners own, and that is to set up a revocable trust, a/k/a a living trust. The trust is designed to have legal ownership of real property transferred to the trust via a deed transfer by the owners, and, like a will, sets out who will get the properties upon the death of the trustees, who are the owners who set up the trust and control its activities. The trust is revocable in that the living trustees can revoke it at any time and have any property transferred back to them. Such trusts are not just designed to deal with real property but also any other property, e.g., insurance policies and financial accounts can be changed to provide that the beneficiary upon death of the owners of such accounts (the trustees in the trust), shall be the trust, and the trust document provides, like a will, who ultimately get anything that the trust has when the trustees are no longer living. The trust will name someone (usually the named executor of the estate in the will), to be the designated trustee upon death of those who set up the trust. The trust will also usually have provisions allowing that same person/designated trustee, to step in and take control of property if the the original trustees become incapacitated. The will that is created at the same time as the trust will itself be fairly short, mainly just designating the trust to be the recipient of any property not specifically owned by the trust when death occurs. The trust and its ownership of property can usually be set up even if there is a mortgage on the property, without having to pay that mortgage off, as long as the named trustees are the named owners in the mortgage.

None of the real property owned by the trust will be subjected to probate upon the death of the trustees because the designated legal owner, the trust, does not die. As far as DVC membership goes, the designated trustees remain the members who do all things DVC, such as pay dues, make reservations, etc.

The cost of setting up the trust and doing anything needed to transfer property interests will be substantially more than just adding new owners via a deed as describe in 1 above.
 
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Wills still have to go through probate. It’s good to have, but as others have said named beneficiaries or ownership in trust are superior estate planning techniques that bypass probate and are generally harder to challenge.

Of course, every state is different and that’s why you are smart to talk to a qualified attorney.
 

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