by Jose D. Roman | Sep 29, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
What Happens to a Timeshare When You Die?
Many people buy a timeshare thinking it will provide years of family vacations while accumulating an asset. What often gets overlooked is what happens to that timeshare after the owner's death. Unlike many assets, a timeshare can continue generating annual maintenance fees, special assessments, taxes, and other obligations long after the owner is gone.
If you own a timeshare, or if a loved one recently passed away owning one, understanding how New Jersey estate law treats these interests can help avoid unpleasant surprises.
Is a Timeshare Part of Your Estate?
A timeshare is generally considered property owned by the deceased person. If the timeshare is titled solely in the owner's name and does not pass automatically to a joint owner or trust, it will typically become part of the probate estate and be administered by the executor. Whether the timeshare is a deeded real estate interest or a contractual right-to-use arrangement, it is generally treated as an asset of the estate. For a deeded interest, ancillary probate in the state where the resort is located may be required. This can increase the cost and complexity of estate administration. For a right-to-use contract, no real property is transferred and ancillary probate is generally not required, but the contractual obligations may still bind the estate.
Are Your Heirs Required to Take the Timeshare?
One of the most common myths about timeshares is that children automatically become personally responsible for them after a parent's death.
Under New Jersey law, beneficiaries generally have the right to disclaim an inheritance. A valid disclaimer allows a beneficiary to refuse property passing to them through a will, trust, or intestacy. If an heir properly disclaims the timeshare, the law treats that person as though they predeceased the decedent for purposes of that inheritance. The property then passes to the next eligible beneficiary. It is important to note that the next beneficiary in line must also file a disclaimer if they too do not want the timeshare.
However, heirs should be careful. Taking ownership, using the timeshare, or otherwise accepting benefits before seeking a disclaimer may limit their ability to refuse the interest later. In addition, a disclaimer must be made within nine months of the transfer (generally, the date of death) or within nine months after the disclaimant turns 21.
Is the Estate Responsible for Ongoing Timeshare Fees?
Although heirs may decline the inheritance, the estate still owns the timeshare during the estate administration process. As a result, maintenance fees, assessments, taxes, mortgage payments, and other contractual obligations may continue to accrue.
Like other creditor claims, these obligations may need to be addressed before distributions are made to beneficiaries. In many cases, an executor will evaluate whether the timeshare has any market value. Unfortunately, many timeshares have little or no resale value while continuing to generate annual expenses.
If the estate has sufficient assets, creditors may seek payment through the estate administration process. New Jersey law generally provides that debts are paid from estate assets before distributions to heirs. If the estate is insolvent or the timeshare is the only asset, creditors may simply be unable to collect. Keep this in mind because timeshare companies sometimes pursue aggressive collection tactics against estates and even against heirs personally.
What Should an Executor Do With a Timeshare?
Each situation is different, but a good first step is obtaining the timeshare documents. The executor should determine:
- Whether the interest is deeded real estate or a contractual membership.
- Whether a loan or mortgage remains outstanding.
- The amount of annual maintenance fees and assessments.
- Whether the timeshare company offers a surrender or deed-back program.
- Whether the interest has any realistic resale value.
In some cases, surrendering the timeshare to the resort may be the most economical solution. In others, a sale or transfer may be possible. Ignoring the issue rarely makes it disappear.
How Should a Timeshare Be Addressed in an Estate Plan?
If you own a timeshare consider selling or surrendering it before you pass away. Otherwise, your estate plan should specifically account for it. Far too often, people leave timeshares to heirs who have no interest in owning them. This can create unnecessary administrative costs, family conflict, and ongoing financial obligations.
A comprehensive estate plan should identify all real estate interests, including vacation properties and timeshares, and consider whether ownership should be transferred during life, placed into a trust, sold, surrendered, or specifically addressed in a will.
Just as important, your family should know the timeshare exists. Many executors discover a timeshare only after maintenance fee invoices begin arriving months after death. If you have not reviewed your estate plan recently, this is a good reminder to make sure assets such as timeshares, vacation properties, and other real estate are properly accounted for.
You may also find my articles on probate, inheriting a home, and a last will and testament helpful when evaluating how a timeshare fits into your overall estate plan.
The Bottom Line
A timeshare does not disappear when its owner dies.
In most cases, it becomes part of the estate, may need to pass through probate, and can continue generating expenses until it is transferred, sold, surrendered, or otherwise resolved. While heirs generally cannot be forced to accept an unwanted timeshare, the estate may still have to address the financial obligations associated with it.
Because timeshares often create unique challenges during estate administration, they should be specifically addressed as part of every New Jersey estate plan.
by Jose D. Roman | Sep 22, 2026 | Legal Bulletin, Medicaid, Medicaid Planning
When a nursing home resident applies for Medicaid in New Jersey, someone often needs to help with the application and appeal process. But who can act for the applicant, and when is a Designated Authorized Representative (DAR) form required?
Those questions were at the center of E.B. v. Division of Medical Assistance and Health Services, 431 N.J. Super. 183 (App. Div. 2013), a case that remains highly relevant for Medicaid applicants, nursing facilities, and elder law attorneys today.
The Facts of the Case
The case involved two nursing home residents who had been approved for Medicaid but wished to challenge adverse determinations through fair hearings. Their nursing facilities, acting on their behalf, requested appeals regarding Medicaid penalty periods and other issues.
The nursing homes’ attorney submitted hearing requests. However, the attorney expressly stated that he represented the nursing facilities, not the Medicaid applicants themselves. The Division of Medical Assistance and Health Services (DMAHS) responded by requiring completion of its Medicaid Designation of Authorized Representative (MDAR) form before proceeding with the appeals. The facilities refused and instead submitted their own authorization forms. DMAHS rejected those forms and would not schedule the hearings. The nursing facilities argued that DMAHS could not require use of the MDAR form. The Appellate Division disagreed.
The Court's Holding
The court upheld DMAHS's authority to require a standardized authorized representative form. It found that the MDAR requirement was consistent with federal and state Medicaid law and helped protect applicants by ensuring that the person acting on their behalf was properly authorized. The court specifically held that DMAHS's requirement that Medicaid applicants use the MDAR form did not violate federal law, did not interfere with fair hearing rights, and was a reasonable measure to protect applicants and the integrity of the Medicaid program.
Why the DAR Form Matters
From a practical standpoint, this case highlights a lesson I regularly encounter in Medicaid cases: if someone other than the applicant is acting on the applicant's behalf, a completed DAR form can prevent unnecessary delays. Counties and DMAHS often refuse to discuss eligibility issues, process appeal requests, or release information unless they have proper authorization in their files. When a DAR form is missing, the result can be avoidable delays in an already time-sensitive Medicaid application. This is particularly important in long-term care Medicaid cases, where delays can affect nursing home reimbursement and create significant stress for families.
For more information on avoiding procedural problems in Medicaid cases, see my articles on mailing Medicaid applications, Medicaid spousal waivers, and VA benefits, QITs, and Medicaid planning.
The Important Attorney Exception
One of the most significant parts of the decision is something many county welfare agencies improperly overlook or ignore. The attorney in E.B. did not represent the Medicaid applicants. He represented the nursing facilities. That distinction drove the outcome. The court noted that the problem arose because the attorney sought a hearing "on behalf of the respective Facility." The court explained:
Had counsel requested the fair hearings in their capacity as the plaintiffs' legal representative, we suspect that this matter would not have caused the CWA any concern.
The court also discussed DMAHS's proposed rule (which is still not formally adopted), which expressly provided:
Use of the Division's Designation of Authorized Representative Form is not required if the authorized representative is the beneficiary's legal guardian, a relative by blood or marriage, the attorney of the beneficiary hired by the beneficiary to represent the beneficiary, or a person with power of attorney for the beneficiary.
In other words, when an attorney actually represents the Medicaid applicant, a DAR form generally should not be required.
The Real-World Problem: Counties Sometimes Get This Wrong
Despite the language discussed in E.B., I still see situations where county agencies request a DAR form from an attorney who already represents the Medicaid applicant. That request is often unnecessary. An attorney retained by the applicant stands in a different position than a nursing facility, its employees, or another third party attempting to act for the applicant. The entire point of the attorney exception is that counsel already has authority through the attorney-client relationship. Unfortunately, the rules are applied inconsistently. As a result, attorneys sometimes need to explain the distinction and push back.
The Takeaway
The lesson from E.B. v. DMAHS is straightforward: make sure the proper authorization documents are in place before problems arise. If a nursing facility, family member, friend, or other third party will be communicating with the county welfare agency or DMAHS, a completed DAR form can prevent delays and disputes.
At the same time, applicants should understand that attorneys who directly represent the Medicaid applicant are treated differently. The key distinction in E.B. was that the lawyer represented the facility, not the Medicaid applicant. Getting this right can mean the difference between a smooth Medicaid process and months of unnecessary delay.
by Jose D. Roman | Sep 15, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
Many people believe that if a loved one has moments of clarity after being declared incapacitated, they can simply sign a new advance directive, health care proxy, or other planning document. New Jersey law is more complicated.
The case In re Roche, 296 N.J. Super. 583 (Ch. Div. 1996), addresses an important question: Can a person who has already been adjudicated incapacitated and placed under guardianship execute a valid advance directive? The court's answer was no. However, the court also recognized that the person's wishes still matter and may continue to influence future medical decisions.
For New Jersey families, the decision highlights the importance of completing estate planning and incapacity planning documents before a guardianship proceeding becomes necessary.
The Facts of In re Roche
Clementine Roche had been adjudicated incapacitated in 1993 due to dementia, and the Public Guardian for Elderly Adults was appointed as her guardian. While residing in a nursing home, Ms. Roche discussed her medical wishes with representatives of the Public Guardian's Office. She indicated that she did not want CPR or artificial nutrition and hydration through feeding tubes under any circumstances.
In 1995, she signed what purported to be an advance directive reflecting those wishes. Medical professionals and guardian representatives believed she understood the nature and consequences of the document at the time she signed it. The guardian then asked the court to determine whether the advance directive was valid and binding. If not, the guardian sought guidance on what weight should be given to the document in future medical decision-making.
The Court's Holding
The court held that a person who has already been adjudicated incapacitated cannot execute a valid advance directive under New Jersey's Advance Directives for Health Care Act. The statute permits a competent adult to execute an advance directive, and the court concluded that the Legislature intended advance directives to be created before a loss of decision-making capacity occurs.
As the court explained, once a person has been adjudicated incapacitated and remains subject to a guardianship, it is too late to create a legally enforceable advance directive under the statute.
At the same time, the court rejected the idea that the document should simply be ignored. Even though the advance directive was not legally valid, it could still be considered evidence of Ms. Roche's wishes and subjective intent when her guardian later faced medical decisions on her behalf.
The Right of Self-Determination Does Not Disappear
One of the most important aspects of Roche is its recognition that incapacitated persons retain a right of self-determination.
Building on earlier New Jersey cases such as In re Conroy and In re M.R., the court emphasized that incapacitated individuals have the same fundamental right to bodily integrity and medical self-determination as competent persons. The difference is that once a person lacks legal capacity, those rights must be exercised through substitute decision-makers and balanced against the individual's best interests.
In other words, guardians do not supplant the person's wishes. Rather, guardians are expected, whenever possible, to determine what the incapacitated person would have chosen if competent and make decisions using a substituted-judgment analysis. Evidence of those wishes can come from conversations, religious beliefs, prior conduct, powers of attorney, living wills, and similar expressions of intent.
For a broader discussion of medical decision-making rights in New Jersey, see my article on the right to refuse medical treatment in New Jersey.
The Practical Impact on Powers of Attorney and Other Planning Documents
Although Roche specifically involved an advance directive, the decision illustrates a broader practical concern. Once a court has adjudicated a person incapacitated and appointed a guardian, the individual's ability to execute new legal documents becomes significantly more complicated.
Whether a will, power of attorney, trust amendment, deed, or other document may be validly executed depends on the nature and scope of the guardianship order, the person's remaining capacity, and, in some situations, court involvement. Although Roche addressed an advance directive rather than a power of attorney, the case demonstrates how a judicial declaration of incapacity can significantly affect an individual's ability to engage in future legal planning.
This is one reason why proactive planning is so critical. Advance directives and powers of attorney are generally most effective when executed before cognitive decline leads to guardianship litigation.
Why Roche Still Matters Today
Nearly three decades after it was decided, In re Roche remains a useful reminder that incapacity planning works best when completed early.
The case reinforces two important principles. First, New Jersey's advance directive statute is designed for competent adults planning ahead for a future loss of capacity. Second, even after a guardianship is established, an incapacitated person's expressed wishes remain relevant and should be considered when guardians make health care decisions.
Families facing capacity concerns should therefore act promptly. Waiting until after a guardianship has been established may eliminate the ability to create certain legally enforceable planning documents, even when the individual appears capable of expressing thoughtful preferences.
If you are dealing with questions concerning incapacity, guardianship, or medical decision-making, you may also find my article on guardians ad litem and mental capacity in New Jersey helpful.
by Jose D. Roman | Sep 8, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
New Jersey has long been a national leader in recognizing a person's right to decide what medical treatment they do and do not want. That right includes the ability to refuse life-sustaining treatment, even when refusing treatment may result in death. Although these cases often arise in heartbreaking circumstances, the legal principle is straightforward: medical treatment generally requires the patient's consent.
The right to refuse treatment is rooted in both personal autonomy and constitutional principles. New Jersey courts have recognized that competent adults have a fundamental right to make decisions about their own medical care, including the decision to decline treatment. The New Jersey Legislature later incorporated those principles into the New Jersey Advance Directives for Health Care Act, which expressly recognizes an individual's right to accept, reject, or discontinue medical treatment and to appoint another person to make decisions when the individual can no longer do so.
The Constitutional Basis for the Right to Refuse Treatment
New Jersey's modern law on refusing life-sustaining treatment began with the 1976 case of In re Quinlan. In that case, twenty-one-year-old Karen Ann Quinlan suffered severe brain damage and entered a persistent vegetative state. Her father sought authority to remove her from a ventilator after physicians concluded there was no realistic hope of recovery. The New Jersey Supreme Court held that an individual's constitutional right of privacy included the right to decline extraordinary life-sustaining treatment and that a guardian could assert that right for an incompetent patient under appropriate circumstances.
The United States Supreme Court later reached a similar conclusion in Cruzan v. Director, Missouri Department of Health. Nancy Cruzan was left in a persistent vegetative state following an automobile accident. The Court recognized that competent individuals have a constitutionally protected liberty interest under the Due Process Clause to refuse unwanted medical treatment. However, the Court also held that states may require reliable evidence of an incompetent patient's wishes before life-sustaining treatment is withdrawn. The decision helped spur the widespread use of living wills and health care powers of attorney across the country.
Conroy: Extending the Right Beyond Ventilators
In 1985 the New Jersey Supreme Court significantly expanded these principles in In re Conroy. Claire Conroy was an elderly nursing home resident suffering from severe, irreversible physical and cognitive impairments. The dispute involved whether artificial nutrition and hydration delivered through a feeding tube could be withdrawn.
The Court held that artificially provided nutrition and hydration constitute medical treatment and may be withdrawn under appropriate circumstances. More importantly, the Court established several decision-making standards for incompetent patients who had not left clear instructions. These standards focused on determining what the patient would have wanted and, in some circumstances, whether the burdens of treatment so outweighed its benefits that continuing treatment would be inappropriate even without clear evidence of the patient's wishes.
Today, Conroy remains one of New Jersey's most important end-of-life cases because it emphasized that the goal is not what family members, judges, or physicians want, but what the patient would have chosen.
Jobes: The Importance of Family and Substituted Judgment
In Matter of Jobes, the New Jersey Supreme Court addressed the case of a young woman who had remained in a persistent vegetative state for years following surgical complications. Her husband and family sought withdrawal of artificial nutrition and hydration.
The Court reaffirmed that the right to refuse life-sustaining treatment extends to incompetent patients. It also emphasized the role of close family members in applying a substituted judgment analysis, meaning an effort to determine what the patient would have chosen if able to decide. The Court ultimately allowed withdrawal of the feeding tube based upon evidence concerning the patient's values and wishes. Together, Quinlan, Conroy, and Jobes firmly established New Jersey's recognition of patient autonomy, even after a person loses decision-making capacity.
The Difference Between a Guardian and a Health Care Agent
Many people assume that a family member automatically gains authority to make medical decisions. That is not always true.
A person may designate a health care representative through an advance directive or medical power of attorney. Once the individual loses capacity, the representative gains legal authority to make health care decisions, including decisions about life-sustaining treatment, subject to the terms of the directive and the patient's known wishes. New Jersey law directs the representative to follow the patient's instructions whenever known.
A guardian, by contrast, receives authority from a court. Guardianship becomes necessary when a person has lost capacity and did not execute valid planning documents. If you would like to learn more about guardianship proceedings, see my articles on New Jersey guardianship, contested guardianship hearings, and who makes medical decisions in New Jersey.
Even a guardian's authority is not unlimited. A guardian is not free to substitute the guardian's personal beliefs for the ward's wishes. Instead, the guardian must attempt to make the decision the ward would have made based on the ward's values, statements, religious beliefs, and prior directives. The courts repeatedly emphasize that the patient's autonomy remains the central concern.
Must a Guardian or Agent Follow an Advance Directive?
Generally, yes.
Under New Jersey law, an advance directive is designed to preserve the patient's voice after incapacity occurs. A health care representative is expected to make decisions in accordance with the patient's instructions and known wishes. Only when the patient's preferences are unknown should the representative turn to a best-interests analysis.
Likewise, a guardian ordinarily must honor a valid advance directive. A court-appointed guardian does not gain the authority to rewrite the ward's prior decisions. The advance directive remains powerful evidence of the patient's wishes and usually controls medical decision-making.
There is one important qualification. New Jersey law provides that if an incapacitated patient clearly expresses a contemporaneous desire to receive life-sustaining treatment, that expressed wish can take precedence over an earlier contrary instruction in an advance directive.
Why Advance Directives Matter
The lesson from Quinlan, Conroy, Jobes, and Cruzan is that New Jersey law places tremendous importance on an individual's own choices. When a person's wishes are clearly documented, courts, physicians, guardians, and family members are far more likely to reach decisions consistent with those wishes.
An advance directive allows you to state what treatments you would accept or refuse and designate a trusted person to speak on your behalf. Without those documents, loved ones may face uncertainty, family disputes, guardianship proceedings, or court involvement at a time that is already emotionally difficult.
New Jersey law recognizes that the decision to undergo or refuse medical treatment belongs first and foremost to the individual. The best way to ensure your voice is heard is to make your wishes known before a crisis occurs.
by Jose D. Roman | Sep 1, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Legal Bulletin, NJ Supreme Court, Probate
Families often assume that a Last Will and Testament clearly reflects a loved one's wishes and that those wishes will be carried out without controversy. Unfortunately, that is not always the case. A recent decision by the New Jersey Supreme Court, Christakos v. Boyadjis, 262 N.J. 447 (2026), highlights how misunderstandings, outdated estate plans, and last-minute revisions can lead to years of probate litigation and significant expense.
The case involved two brothers, Peter and Nicholas Christakos, who had signed wills in 2003 providing that their estates would pass to one another and, ultimately, to certain family members. More than a decade later, they consulted an attorney about updating their estate plans. During that process, the attorney incorrectly interpreted provisions of the existing Wills and later drafted new Wills that did not fully accomplish what the brothers intended. After both brothers died, multiple probate disputes followed, eventually leading to a legal malpractice lawsuit against the drafting attorney.
The New Jersey Supreme Court was asked to decide whether a family member who was not a client of the attorney could sue the attorney for malpractice. The Court held that, under the circumstances presented, she could not. In adopting Section 51 of the Restatement (Third) of the Law Governing Lawyers, the Court emphasized that attorneys generally owe duties to their clients, not to every person who might have expected to inherit from an estate. Because there was insufficient evidence that the decedents intended the claimant to be a beneficiary under the later wills, the malpractice claim could not proceed.
Although the decision focuses on attorney liability, the more important takeaway for New Jersey families is the value of careful and proactive estate planning.
One lesson is the importance of regularly reviewing an estate plan. Many people create a Will and never look at it again. Over time, however, family relationships change, beneficiaries pass away, financial circumstances evolve, and personal priorities shift. An estate plan that made perfect sense twenty years ago may no longer reflect a person's wishes today. Regular reviews help ensure that documents remain consistent with current goals and avoid surprises after death. For more information about creating and updating a Will, see my article on Last Wills and Testaments in New Jersey.
The case also demonstrates the importance of clearly expressing testamentary intent (what the person signing the Will intends). Much of the litigation centered on determining what the brothers actually wanted to happen to their property. When estate planning documents leave room for interpretation, surviving family members may spend years fighting over those questions in court. Clear drafting, thorough communication with counsel, and careful documentation of significant decisions can substantially reduce the likelihood of future disputes.
Another important issue is planning before health concerns become urgent. Questions regarding diminished capacity frequently arise when Wills or estate planning documents are executed later in life. While most older adults retain the ability to make valid estate planning decisions, waiting until a medical crisis occurs can increase the risk of challenges after death. Addressing estate planning needs early is often one of the most effective ways to protect both the plan and the family members who may later be called upon to defend it.
The decision is also a reminder that family members should avoid making assumptions about inheritance rights. A relative may have been included in an earlier Will but omitted from a later one. Beneficiary designations, trusts, and revised estate planning documents can dramatically alter who ultimately receives property. Expectations based on old documents or family conversations often lead to disappointment and lawsuits.
For many New Jersey families, real estate is among the most valuable assets in an estate. Questions about who inherits a home, whether the property should be sold, and how ownership transfers after death are common sources of conflict. If you are dealing with inherited real estate, my article on Inherited Homes in New Jersey discusses several of the practical and legal issues that may arise.
The broader lesson of Christakos v. Boyadjis is that good estate planning is not simply about signing documents. It is about creating a legally sound plan that accurately reflects your wishes, communicating those wishes clearly, and revisiting the plan as life changes. Taking those steps can help minimize uncertainty, reduce the risk of expensive probate disputes, and provide peace of mind for both you and your loved ones.
Estate disputes do not always end up in court. In some cases, alternative dispute resolution may offer a more efficient path forward. You can learn more in our article on Arbitration Clauses and New Jersey Will Disputes. Likewise, major life events can have unexpected consequences for inheritance rights, as discussed in my post about Death During a Pending Divorce in New Jersey.