Timeshares and probate

Timeshares and Probate

Probate is a legal process by which title to property is formally transferred at death. A primary probate proceeding is opened in the state where the deceased is domiciled at time of death. Ancillary probate is a probate proceeding opened in another state to transfer property owned by the deceased in that state. Real estate, including a timeshare interest, if located in a non-domiciliary state (or another country) must be transferred by an ancillary probate proceeding in that jurisdiction(s). At least half a dozen times a year we receive a call about a resident of another state who has passed away while owning a time share in Las Vegas and inquiry whether it will need to be subject to the probate administration process.

Is it required to probate a timeshare interest? It depends. Many timeshares are real estate interests which means that they are deeded. Other timeshares are a contractual “rights to use”. If the interest is deeded, then it can only be transferred at death by a filing in probate court.

Deeded timeshare Interests. Timeshare interests may be evidenced by a deed which contains a legal description. Legal descriptions of a timeshare can change if (a) a new company takes over the timeshares and re-do the legal descriptions, or (b) after the deed is issued, there are subsequent amendments to the various documents the timeshare company files with the County which are part of the legal description. You should request a copy of the Deed containing the legal description.

How does the transfer of a timeshare interest occur? Typically, once we record a certified copy of the Order from the Probate Court with the County Recorder transferring title to the person entitled under the will, or pursuant to the heirs if the person died intestate, you will provide the Order to the timeshare company, remit the timeshare company’s title transfer fee, and the timeshare interest will be transferred in accordance with the terms of the Order.

Is a timeshare interest passed by probate subject to real property transfer tax? Yes, however, the transfer may be subject to an exemption. NRS 375.090(5) recognizes an exemption to the tax for a transfer, assignment or other conveyance of real property if the owner of the property is related to the person to whom it is conveyed within the first degree of lineal consanguinity or affinity (e.g., parent to child). In addition, NRS 375.090(3) recognizes an exemption to the tax for a transfer of title recognizing the true status of ownership of the real property, including, without limitation, a transfer by an instrument in writing pursuant to the terms of a land sale installment contract previously recorded and upon which the taxes imposed by this chapter have been paid.

For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.

Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.