Many families are surprised to discover that a timeshare is not just a vacation plan—it is legally classified as real property under Florida law. Because of this classification, a Florida timeshare—including those at Disney World in Orange County, Indian River County, and elsewhere across the state—generally cannot be transferred to heirs outside of the legal probate process unless specific pre-death planning was already in place. At Osenton Law Group, P.A., we handle many probate matters for Disney and other timeshares and understand the specific complexities these unique assets present.
When Does a Florida Timeshare Require Probate?
In Florida, any real estate owned in an individual’s sole name at the time of death is considered a probate asset. This rule applies to timeshares regardless of where the owner lived.
Scenarios Where Probate Is Likely Required
- Sole Ownership: The timeshare deed is solely in the name of the deceased individual.
- Tenants in Common: If the timeshare was owned as “tenants in common” (without rights of survivorship), the decedent’s interest must pass through probate.
- Lack of Pre-Planning: The timeshare was not placed in a living trust, was not owned with rights of survivorship, and no “beneficiary” (such as a Lady Bird deed) was designated that is recognized by the timeshare resort.
Exceptions: When Probate Might Be Avoided
You may be able to avoid probate if the timeshare was:
- Owned with Rights of Survivorship: If titled as “joint tenants with rights of survivorship,” the interest typically passes automatically to the surviving owner.
- Held in a Revocable Living Trust: If the deed was properly transferred into a trust during the owner’s lifetime, the trust terms dictate the transfer.
- Subject to an Enhanced Life Estate (Lady Bird) Deed: If this specialized deed was recorded, the property may pass directly to the remainderman.
The Probate Process for Timeshares
If the timeshare must go through probate, the process depends on the state of residence of the deceased.
Domiciliary vs. Ancillary Probate
- Florida Resident: If the owner was a Florida resident, the timeshare is included in their primary (domiciliary) probate estate.
- Non-Florida Resident: If the owner lived in another state, the timeshare requires a specific proceeding called Ancillary Probate Administration in Florida. This is a “mini-probate” case filed in the Florida county where the timeshare is located to clear the title, even if a main probate case is already open in the owner’s home state.
Types of Probate
Depending on the value of the estate and the timeshare, you may qualify for:
- Summary Administration: A faster, streamlined process for estates with assets valued below a certain threshold or where the decedent has been deceased for more than two years.
- Formal Administration: A comprehensive, court-supervised process required for larger estates, in which the court will appoint a Personal Representative to oversee the administration.
The Role of the Personal Representative
The court-appointed Personal Representative (or Executor) has several key duties, including:
- Notifying the timeshare resort of the death.
- Managing the payment of ongoing maintenance fees and taxes from estate funds during the process.
- Obtaining an order from the court to legally transfer the deed to the beneficiaries.
Important Considerations for Heirs
Before initiating probate, beneficiaries should carefully evaluate the asset. Because Osenton Law Group, P.A. manages a high volume of probate cases involving Disney and other timeshares, we can provide the specific guidance needed to determine if keeping the interest is in the best interest of the estate.
- Evaluate the Value: Because many timeshares have little to no resale value but carry perpetual, escalating maintenance fees, the cost of the legal fees to probate the timeshare may exceed the value of the asset itself.
- Disclaiming the Inheritance: If you do not want the timeshare, you may be able to file a formal Disclaimer of Interest. This must typically be done within a specific timeframe and before you have accepted any benefits (like using the unit). This legally releases you from the obligation to take ownership or pay future fees.
- Family Redistribution: Often, there are family members who do not wish to retain the timeshare while others do. In these instances, we will complete the probate process and subsequently assist the uninterested family members in deeding their interest to the family members who wish to keep the timeshare.
