Seeking advice on how to sell or deedback my deceased mother’s timeshare

[schmoomom2]

My mother passed away a number of years ago ((17 years ago to be exact) owning a timeshare at Marriott vacation club Kauai beach. Her lawyer neglected to put it in her trust and it’s outside any probate that occurred and therefore it’s still held in her name. Her lawyer is deceased, and all the documentation is gone. I have been paying the maintenance fees all this time but they have just gotten out of control and I’d like to end the relationship with Marriott.

My understanding is that I can’t sell it outright in Hawaii because the deed is still in her name. I’ve been googling this, and the Internet tells me that even though it wasn’t in her trust, it would’ve somehow passed to me. I don’t believe this is correct and I’ve been told by Marriott in the past that I would need to do the work to transfer the deed into my name through opening a probate proceeding in HI before I can do anything with it. It’s in Hawaii and I’m in California and it involves hiring probate lawyers there, etc. Does anybody have any advice for me? It’s a good time share, platinum level/any week of the year oceanfront, villa style, there’s no balance owing and fees have always been timely paid. If I could get a little something for it, that would be great but I’m not really willing to pay the legal freight just to sell it under my name as that would likely be a wash. Thanks for any advice!

 

[easyrider]

If you have been using it for 17 years without a problem why wouldn't you just keep using it ? I'm guessing you are wanting to sell it. Why couldn't you just sell it in the same way you are using it ? If you are your moms authorized user for this account, which it seems like you are because of paying the mf and using it for 17 years, why wouldn't you be recognized as such by Marriott ?

You could also just walk away and let them foreclose. It's not in your name.

Bill

 

[vacationtime1]

We used to own KBC, and unlike many here, really liked staying there. But MF's are totally out of control. Per the 2024 MF thread (post #19), MF's for a one bedroom unit will be $2,924 next year. That's more than the rental value (even for an OF unit) and more than the cost of making a reservation using Abound points.

Unless you really, really want to stay there a couple more times, you should do nothing and let Marriott foreclose.

The cost of selling (the ancillary probate) would probably exceed the sales proceeds, given that the value of this property is going to tank once the extent of the MF increase becomes widely known.

 

[davidvel]

My mother passed away a number of years ago ((17 years ago to be exact) owning a timeshare at Marriott vacation club Kauai beach. Her lawyer neglected to put it in her trust and it’s outside any probate that occurred and therefore it’s still held in her name. Her lawyer is deceased, and all the documentation is gone. I have been paying the maintenance fees all this time but they have just gotten out of control and I’d like to end the relationship with Marriott.

My understanding is that I can’t sell it outright in Hawaii because the deed is still in her name. I’ve been googling this, and the Internet tells me that even though it wasn’t in her trust, it would’ve somehow passed to me. I don’t believe this is correct and I’ve been told by Marriott in the past that I would need to do the work to transfer the deed into my name through opening a probate proceeding in HI before I can do anything with it. It’s in Hawaii and I’m in California and it involves hiring probate lawyers there, etc. Does anybody have any advice for me? It’s a good time share, platinum level/any week of the year oceanfront, villa style, there’s no balance owing and fees have always been timely paid. If I could get a little something for it, that would be great but I’m not really willing to pay the legal freight just to sell it under my name as that would likely be a wash. Thanks for any advice!

There is a simplified probate process in Hawaii and likely most states, that you can do you yourself with an affidavit and a few forms. Search Google for simplified probate or summary probate. No need to hire a lawyer to do this. Here is a further explanation:

Probate Shortcuts in Hawaii

Save time and money when you wrap up an estate in Hawaii by using a small estate affidavit or summary administration.

www.nolo.com

 

[RX8]

the Internet tells me that even though it wasn’t in her trust, it would’ve somehow passed to me.

Don’t believe everything you read on the internet because that is not true.

 

[LeslieDet]

My mother passed away a number of years ago ((17 years ago to be exact) owning a timeshare at Marriott vacation club Kauai beach. Her lawyer neglected to put it in her trust and it’s outside any probate that occurred and therefore it’s still held in her name. Her lawyer is deceased, and all the documentation is gone. I have been paying the maintenance fees all this time but they have just gotten out of control and I’d like to end the relationship with Marriott.

My understanding is that I can’t sell it outright in Hawaii because the deed is still in her name. I’ve been googling this, and the Internet tells me that even though it wasn’t in her trust, it would’ve somehow passed to me. I don’t believe this is correct and I’ve been told by Marriott in the past that I would need to do the work to transfer the deed into my name through opening a probate proceeding in HI before I can do anything with it. It’s in Hawaii and I’m in California and it involves hiring probate lawyers there, etc. Does anybody have any advice for me? It’s a good time share, platinum level/any week of the year oceanfront, villa style, there’s no balance owing and fees have always been timely paid. If I could get a little something for it, that would be great but I’m not really willing to pay the legal freight just to sell it under my name as that would likely be a wash. Thanks for any advice!

The information you have been given by MVC is accurate. Your mother's executor should have probated her estate to deal with her real property ownership in Kauai. The only means for you to legally convey title to you is to reopen her estate and probate the asset. You are not understanding how google is summarizing the laws that apply to real estate. While the real property will "pass" to you, it isn't anything that happens without court intervention. Because the property was not part of her trust, it requires probate. It sounds like she had a will and had an estate attorney work as an executor to properly close out her estate and all that entails, like filing the final tax return, distributing assets to her heirs (if by will) and her successor trustee distribute to her beneficiaries identified under the trust, and the executor failed to complete the work. If you were an heir identified in her will, then you have a legal right to the property; but probate must occur. If your mom did not have a will (which I assume she did because you mentioned probate), then your right to inherit the property would be determined by Hawaii law, and it could include other heirs.
Anyway, back to the will/probate/documents issue, you state that all documents are gone. That is not accurate. The deed is recorded in the public records for Kauai. You can obtain a copy of that deed. The probate court where your mom's estate was probated should have the original will in its archived files. Start there. Get a copy of the will. Then reach out to Hawaii counsel to initiate an ancillary probate to transfer the legal ownership to you, assuming you are the identified beneficiary in the will. There is no life hack that applies. Real estate law has been the same for hundreds of years.

 

[LeslieDet]

If you have been using it for 17 years without a problem why wouldn't you just keep using it ? I'm guessing you are wanting to sell it. Why couldn't you just sell it in the same way you are using it ? If you are your moms authorized user for this account, which it seems like you are because of paying the mf and using it for 17 years, why wouldn't you be recognized as such by Marriott ?

You could also just walk away and let them foreclose. It's not in your name.

Bill

One cannot sell that which he does not own.

 

[davidvel]

The information you have been given by MVC is accurate. Your mother's executor should have probated her estate to deal with her real property ownership in Kauai. The only means for you to legally convey title to you is to reopen her estate and probate the asset. You are not understanding how google is summarizing the laws that apply to real estate. While the real property will "pass" to you, it isn't anything that happens without court intervention. Because the property was not part of her trust, it requires probate. It sounds like she had a will and had an estate attorney work as an executor to properly close out her estate and all that entails, like filing the final tax return, distributing assets to her heirs (if by will) and her successor trustee distribute to her beneficiaries identified under the trust, and the executor failed to complete the work. If you were an heir identified in her will, then you have a legal right to the property; but probate must occur. If your mom did not have a will (which I assume she did because you mentioned probate), then your right to inherit the property would be determined by Hawaii law, and it could include other heirs.
Anyway, back to the will/probate/documents issue, you state that all documents are gone. That is not accurate. The deed is recorded in the public records for Kauai. You can obtain a copy of that deed. The probate court where your mom's estate was probated should have the original will in its archived files. Start there. Get a copy of the will. Then reach out to Hawaii counsel to initiate an ancillary probate to transfer the legal ownership to you, assuming you are the identified beneficiary in the will. There is no life hack that applies. Real estate law has been the same for hundreds of years.

While the OP used the word "probate" I am not convinced a probate was opened, especially given there was a trust established. This is obviously a critical question in how easy this process will be.

 

[LeslieDet]

While the OP used the word "probate" I am not convinced a probate was opened, especially given there was a trust established. This is obviously a critical question in how easy this process will be.

Yes indeed, it is important to know whether or not there was actually a will. If not, as I indicated, then the property would pass per Hawaii intestate succession laws. That would actually be more time and expense than an ancillary probate.

 

[BingoBangoBongo]

One cannot sell that which he does not own.

Could Marriott claim that because they have been paying the MF's for 17 years that they are in fact the owner?

 

[LeslieDet]

Could Marriott claim that because they have been paying the MF's for 17 years that they are in fact the owner?

No; deeded real property can only be legally transferred by the owner. When the owner is dead, it requires a court order authorizing the recordation of a deed transferring title. It sounds like the OP simply started using the deceased mom's login and never let MVC know the mom had passed. If the OP had told MVC, the account would have been locked.

 

[jp10558]

One cannot sell that which he does not own.

Do I know it. We have a family member who due to increasing mental illness is no longer competent to make decisions, and is in a care home (which isn't cheap). He insists on keeping a truck that is eating a lot of his monthly income in payments, but that he cannot use (both due to not being let near it and physical and mental issues). We're supposed to be doing our best to take care of him and make changes in his interest, but we do not have POA, so as far as I can tell, he'll pay on this truck till it's paid off, and then it will have to rust into the ground basically sitting in a driveway somewhere or he'll have to die so that someone can do something with it. It is sad.

 

[LeslieDet]

Do I know it. We have a family member who due to increasing mental illness is no longer competent to make decisions, and is in a care home (which isn't cheap). He insists on keeping a truck that is eating a lot of his monthly income in payments, but that he cannot use (both due to not being let near it and physical and mental issues). We're supposed to be doing our best to take care of him and make changes in his interest, but we do not have POA, so as far as I can tell, he'll pay on this truck till it's paid off, and then it will have to rust into the ground basically sitting in a driveway somewhere or he'll have to die so that someone can do something with it. It is sad.

My condolences. That is difficult. If you are trying to help and do not have a DPOA (durable POA), sadly, the only other way to get the legal authority to help him is to seek a conservatorship over him. It could be costly, but if you are the one who is dealing with paying his bills and managing his assets and keeping his keys away from him, you might want to discuss that legal step with your attorney. Best wishes to you in that difficult situation.

 

[2rebecca]

The information you have been given by MVC is accurate. Your mother's executor should have probated her estate to deal with her real property ownership in Kauai. The only means for you to legally convey title to you is to reopen her estate and probate the asset. You are not understanding how google is summarizing the laws that apply to real estate. While the real property will "pass" to you, it isn't anything that happens without court intervention. Because the property was not part of her trust, it requires probate. It sounds like she had a will and had an estate attorney work as an executor to properly close out her estate and all that entails, like filing the final tax return, distributing assets to her heirs (if by will) and her successor trustee distribute to her beneficiaries identified under the trust, and the executor failed to complete the work. If you were an heir identified in her will, then you have a legal right to the property; but probate must occur. If your mom did not have a will (which I assume she did because you mentioned probate), then your right to inherit the property would be determined by Hawaii law, and it could include other heirs.
Anyway, back to the will/probate/documents issue, you state that all documents are gone. That is not accurate. The deed is recorded in the public records for Kauai. You can obtain a copy of that deed. The probate court where your mom's estate was probated should have the original will in its archived files. Start there. Get a copy of the will. Then reach out to Hawaii counsel to initiate an ancillary probate to transfer the legal ownership to you, assuming you are the identified beneficiary in the will. There is no life hack that applies. Real estate law has been the same for hundreds of years.

After initiating the ancillary probate, does the OP have to transfer legal ownership to themselves? Do they have the right to decline acceptance at that point?

 

[LeslieDet]

After initiating the ancillary probate, does the OP have to transfer legal ownership to themselves? Do they have the right to decline acceptance at that point?

No beneficiary is ever required to accept a bequest. But simply because a beneficiary declines the bequest doesn't mean that an ancillary probate isn't required. The executor of an estate uses that process in order to legally convey title to someone, whoever that may be, after the owner's death. That is why holding title in a revocable living trust makes things so much easier. No court order or ancillary probate is required. The successor trustee is vested with the legal authority to act on behalf of the trust and convey title.

I'm not understanding your reference to the OP in your question. And note that an executor of an estate would not convey title of real property to himself/herself unless that person was the intended beneficiary and actually wanted to take ownership of the real property. An executor still is required to open an ancillary probate in connection with a sale or transfer of the real property title to an unrelated person or entity, ie even if it ends up being a deed back to the developer for zero compensation.

 

[davidvel]

No beneficiary is ever required to accept a bequest. But simply because a beneficiary declines the bequest doesn't mean that an ancillary probate isn't required. The executor of an estate uses that process in order to legally convey title to someone, whoever that may be, after the owner's death. That is why holding title in a revocable living trust makes things so much easier. No court order or ancillary probate is required. The successor trustee is vested with the legal authority to act on behalf of the trust and convey title.

I'm not understanding your reference to the OP in your question. And note that an executor of an estate would not convey title of real property to himself/herself unless that person was the intended beneficiary and actually wanted to take ownership of the real property. An executor still is required to open an ancillary probate in connection with a sale or transfer of the real property title to an unrelated person or entity, ie even if it ends up being a deed back to the developer for zero compensation.

And what if there are no other assets other than this TS interest, all heirs/beneficiaries decline it, and no one steps up to be executor and open probate? What happens then?

 

[5finny]

@LeaslieDet
As I have previously said I have my timeshares in a trust and for me that is the right thing to do.
The only thing in my timeshare trust are my timeshares .
That (my timeshare trust) is almost the same as the trust that the rest of my property is in
The main difference between the two is just the name of the trust and I am not sure if there was really any benefit in having done it that way

I think these discussions have been helpful but at times also confusing
Part of the confusion seems to arise when people are giving opinions as to what the "law" requires and also what "ethical behavior" requires
Ideally they are the same but often they are not

A data point (and my only input on the law)
In an Illinois estate I was involved in the representative was allowed to abandon property that was burdensome and of no value to the estate.
It had nothing to do with timeshares and may well have been a situation unique to those facts and to Illinois

My take on "ethical behavior" leads me to a rather simplistic conclusion and that is that you should try not to do unnecessary harm to any person or thing
Therefore you should take reasonable steps to sell or give back a timeshare so as not to harm even a developer like Westgate and certainly not to harm your fellow owners
The devil is in the details
A person on their death bed wondering how their soon to be orphaned children will survive is not required to do more than offer to sign a quitclaim deed prepared at the association's expense -- a person of means should do much more ( By using two extremes as my examples I deliberately avoid the complex very difficult personal decisions that people have to make in the real world)
I freely admit nothing in this paragraph is based on the law -and nothing really tells the innumerable people dealing with their unique factual situations what they "have" to or even "should" do

Others are certainly free to draw their own ethical lines in the sand

To those who want to just "walk away" with no concern for others I disagree with you
To those who say a person should never walk away I also disagree with you
To those who want to wrestle with this problem now so that those that they leave behind (or their future self) has a plan in place that they are satisfied with I think you are on the right track
To those who think they have the correct solution and that that solution applies to everyone I suspect you are wrong

(Sorry this is more preachy than I usually like)

 

[klpca]

For me the biggest issue of all is if you leave a mess for your executor to deal with. Look at the OP. The mess is in their lap now, even after all of these years. Make it simple for your executor. In the long run, this will save money and leave more to your heirs.

Timeshares are a bit tricky. Do your homework, get it titled correctly, and then leave instructions on how to take care of things. Whatever you do, don't kick the can down the road for someone else to deal with because it can be costly, and probably very frustrating for the executor.