# Legal language to Opt Out timeshare in will



## atrianacpa (Feb 14, 2012)

Hello.  My mother has a membership agreement type timeshare in Grand Cayman managed by a US company and I would like to know what language she can place on her last will so that the timeshare remains with the estate and is not bequeath to her heirs (me).  The estate assets including house, bank account and cars are already under joint ownership with me and should not be part of the estate at death.  I am also the executor as well.   The estate will have no assets at death except for the timeshare that is fully paid for.  Can the timeshare company sue me?  What language can be written to avoid getting sued by the timeshare company fon non payment of maintenance fees after death?  Many thanks in advance!!    P.S.  The agreement mentions nothing of what happens after the owner dies.


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## aliikai2 (Feb 14, 2012)

*We aren't attorneys*

And what you are asking for is legal advice, please consult with your legal adviser .

Greg



atrianacpa said:


> Hello.  My mother has a membership agreement type timeshare in Grand Cayman managed by a US company and I would like to know what language she can place on her last will so that the timeshare remains with the estate and is not bequeath to her heirs (me).  The estate assets including house, bank account and cars are already under joint ownership with me and should not be part of the estate at death.  I am also the executor as well.   The estate will have no assets at death except for the timeshare that is fully paid for.  Can the timeshare company sue me?  What language can be written to avoid getting sued by the timeshare company fon non payment of maintenance fees after death?  Many thanks in advance!!    P.S.  The agreement mentions nothing of what happens after the owner dies.


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## Lawlar (Feb 14, 2012)

*See the Attorney who Drafted the Will*

It's a good idea to have the will and estate documents reviewed by an attorney.  There may be tax and other issues you may miss if you don't have a professional prepare the will (or trust agreement).
An heir can always reject a gift from an estate.  Regardless, the timeshare company cannot sue the heirs for the decedent's obligation on the timeshare contract.  The heirs inherit assets not debts.  However, if you want to use the timeshare you would have to pay the mfs.


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## Passepartout (Feb 14, 2012)

I can't think of any legal language that would terminate a deeded real estate holding at the death of the owner. It would fall to the estate and be up to the PR/executor to dispose of.

I am not a lawyer, and my opinion is just that. Opinion. OP, consult with your own legal counsel for advice.

Jim Ricks


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## atrianacpa (Feb 14, 2012)

*Timeshare opt out language*



Passepartout said:


> I can't think of any legal language that would terminate a deeded real estate holding at the death of the owner. It would fall to the estate and be up to the PR/executor to dispose of.
> 
> I am not a lawyer, and my opinion is just that. Opinion. OP, consult with your own legal counsel for advice.
> 
> Jim Ricks



Thanks for the reply.  We can all learn from this so let's keep it going.  This is a very important topic most people here will face.  Remember guys that this is not deeded property.  It is a membership agreement similar to a cell phone contract.  It is a HOA maintenance agreement.  The estate would have no funds to pay it.  What can be written so that it defaults to the estate at death?


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## Passepartout (Feb 14, 2012)

With apologies, I had read over the 'membership' part. By far the largest ownership category of TSs is deeded 'in perpetuity', so they obviously continue after the death of the owner, who's estate cleans up the issue through probate.

I also own a 'club' membership. It readily accepts return of memberships on a variety of conditions, including death of the owner. I'd suggest you contact the BOD or HOA of the resort where your mom owns and just ask how to set up the membership so that it either reverts to your name (as executor) if you want it, or it dies with her, thereby ending her responsibility to keep paying MFs. If your name isn't on the membership, I see no way you can be held responsible for her encumbrance. 

All that said, once again, seek counsel from your own advisor.

Jim


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## atrianacpa (Feb 14, 2012)

*Timeshare after death*

Thanks.  I think they can make the heirs responsible if they do not file a disclaimer of interest or if the will does not specify that they do not inherit it.
I know this requires a lawyer but we could all learn specially if there are lawyers in this forum.  A lawyer would probably charge a lot and this is free learning.   So, I was curious if a will could be designed with language that keeps the agreement inside the estate and does not transfer it to heirs then the estate would have to pay for it from its own funds except that it might not have any so what happens then?







Passepartout said:


> With apologies, I had read over the 'membership' part. By far the largest ownership category of TSs is deeded 'in perpetuity', so they obviously continue after the death of the owner, who's estate cleans up the issue through probate.
> 
> I also own a 'club' membership. It readily accepts return of memberships on a variety of conditions, including death of the owner. I'd suggest you contact the BOD or HOA of the resort where your mom owns and just ask how to set up the membership so that it either reverts to your name (as executor) if you want it, or it dies with her, thereby ending her responsibility to keep paying MFs. If your name isn't on the membership, I see no way you can be held responsible for her encumbrance.
> 
> ...


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## Conan (Feb 15, 2012)

Most (maybe all) states have a separate probate track for estates that are insolvent, that is, estates where total liabillities exceed total assets.

In an insolvent estate the heirs get nothing.  Whatever there is goes (generally) first to funeral expenses, then attorney fees and (generally) executor fees, then what's left if anything is divided among general creditors.  In other words, a lot like a bankruptcy.

The executor still has the fiduciary responsibility to make sure the assets are disposed of the way the statute requires.  If the main asset is a timeshare that has no resale value, my goal as executor would be to arrange a deed-back to the association, but I would get some sort of appraisal and I would apply to the probate court for permission before closing.  Otherwise a creditor might say I disposed of the asset for less than its fair value in which case I could be personally liable for estate debts to that extent.

The same approach is probably right for a solvent estate--appraise the timeshare, arrange a deedback if the value is near-nothing if no beneficiary wants it, and get probate court approval before signing it over.


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## atrianacpa (Feb 15, 2012)

*Timeshare after death*

Excellent answer!  Now we are starting to get members that know some law.

Let's remember however that this is not a deeded property (no deed).  This is a membership agreement or "Club, right to use" timeshare.  The estate will not have assets because all properties are co-owned before death and do not become part of probate or part of the estate.  The only liability is the timeshare except there is no money to pay the maintenance fees.   My original question was:  What language can be written in the final will and testament so that the estate sells, disposes or terminates the timeshare agreement and so that no beneficiaries end up inheriting the timeshare.  The idea is to lock it inside the estate and not give it to any beneficiaries forcing the executor to do his best to sell it or liquidate, give it back to resort or make it go away somehow!










Conan said:


> Most (maybe all) states have a separate probate track for estates that are insolvent, that is, estates where total liabillities exceed total assets.
> 
> In an insolvent estate the heirs get nothing.  Whatever there is goes (generally) first to funeral expenses, then attorney fees and (generally) executor fees, then what's left if anything is divided among general creditors.  In other words, a lot like a bankruptcy.
> 
> ...


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## ampaholic (Feb 15, 2012)

atrianacpa said:


> Excellent answer!  Now we are starting to get members that know some law.



Any advice you get here should be considered "personal opinion" based only on generalized knowledge.

*Real law opinions require a licensed practitioner - period.*


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## aliikai2 (Feb 15, 2012)

*Again,*

You need to hire a professional to handle this, relying on chatter on a timeshare users site is foolhardy.
If someone was an attorney do you think they would give you the answer for free here? :rofl: 
They get paid for what they know, they seldom if ever give it away for free.

Greg 



atrianacpa said:


> Excellent answer!  Now we are starting to get members that know some law.
> 
> Let's remember however that this is not a deeded property (no deed).  This is a membership agreement or "Club, right to use" timeshare.  The estate will not have assets because all properties are co-owned before death and do not become part of probate or part of the estate.  The only liability is the timeshare except there is no money to pay the maintenance fees.   My original question was:  What language can be written in the final will and testament so that the estate sells, disposes or terminates the timeshare agreement and so that no beneficiaries end up inheriting the timeshare.  The idea is to lock it inside the estate and not give it to any beneficiaries forcing the executor to do his best to sell it or liquidate, give it back to resort or make it go away somehow!


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## atrianacpa (Feb 15, 2012)

*Timeshare after death*

Thanks but I think that is the wrong spirit.  I am a CPA as my username implies and I will give anyone free advice from the top of my head.  I will not incur hours researching it but certaintly will give advice of matters that I already know.

I would charge if I had an office and a client came in but this is not an office but rather a public forum where people come to learn.  Let's not be so business oriented and help each other more.   I, offcourse, know that these are just opinions and not official statements. 







aliikai2 said:


> You need to hire a professional to handle this, relying on chatter on a timeshare users site is foolhardy.
> If someone was an attorney do you think they would give you the answer for free here? :rofl:
> They get paid for what they know, they seldom if ever give it away for free.
> 
> Greg


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## vacationhopeful (Feb 15, 2012)

Your "club" membership is in a foreign country? What _might_ be true here in the United States or in each individual state of the union, *most likely has NO RELEVANCE in the Grand Caymen Islands.*

Seek paid legal advice. Or get rid of the membership NOW.


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## aliikai2 (Feb 15, 2012)

*If you ask something about the use of a timeshare*

you came to the right place.

You seem to want to ignore the facts that you need professional help, you have been told by 5 of us now that you should hire this done, ignore us at your own peril. 

Having been sued in the past for Practicing Law without a license, I do know what I am telling you. I am not an attorney nor do I play one on TV, and I didn't sleep at a Holiday Inn Express. 

Greg 



atrianacpa said:


> Thanks but I think that is the wrong spirit.  I am a CPA as my username implies and I will give anyone free advice from the top of my head.  I will not incur hours researching it but certaintly will give advice of matters that I already know.
> 
> I would charge if I had an office and a client came in but this is not an office but rather a public forum where people come to learn.  Let's not be so business oriented and help each other more.   I, offcourse, know that these are just opinions and not official statements.


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## bogey21 (Feb 15, 2012)

I have avoided hiring lawyers my entire (77 years) life.  No question that if you get in trouble or otherwise have to appear in court, you should most likely hire a lawyer.  Otherwise research the issue yourself; figure out what to do; and do it.  I gave everything of value to my kids, ex-wife, etc. about 10 years ago so my estate will contain a bunch of debt obligations and no assets of any value.  I paid something like $59 to Legal Zoom to prepare a simple will.  I think I did a good job but will not know for sure as I will be dead when the rubber meets the road.

George


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## atrianacpa (Feb 15, 2012)

*Timeshare after death*

That is the real spirit George!  Many people run to the Dr or lawyer for the slightest thing and pay tons of money.  It's the american way.  Well, how about being resourceful and consulting a professional when things are beyond your abilities.

I think you did the right thing and if you transfer all your assets using a trust or co-ownership agreements while alive then you can avoid probate and creditors cannot go after your estate.  Something we could all learn from.  Sure there are tax implications since property of the estate will have a basis equals to the current FMV vs property before the estate which will have the basis equal to original cost.  I, as a CPA can tell you that for free!  Thanks for your reply. 






bogey21 said:


> I have avoided hiring lawyers my entire (77 years) life.  No question that if you get in trouble or otherwise have to appear in court, you should most likely hire a lawyer.  Otherwise research the issue yourself; figure out what to do; and do it.  I gave everything of value to my kids, ex-wife, etc. about 10 years ago so my estate will contain a bunch of debt obligations and no assets of any value.  I paid something like $59 to Legal Zoom to prepare a simple will.  I think I did a good job but will not know for sure as I will be dead when the rubber meets the road.
> 
> George


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## WorkingonIt (Apr 18, 2012)

I am a lawyer and am not offering legal advice because it is not specific to any situation.  However, the idea that a trust will keep your assets away from creditors is inaccurate.  Even if assets are not in probate they are not necessarily shielded from creditors.  Here is an example in pretty straightforward language from Montana law: http://data.opi.mt.gov/bills/mca/72/36/72-36-302.htm


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