There are two certainties in life: death and taxes. If you are a landlord, it is entirely possible that you will (at some point) deal with a tenant who has died. Here’s some helpful, general information on dealing with a deceased tenant.
Secure the Property
If the tenant died in their home (your rental property), you may need to secure the premises after the authorities (EMT, police, coroner, etc.) have concluded their business. This may involve securing windows and doors – the purpose is simply to minimize any possible damage to the rental property itself.
Status of the Lease
A long-term lease is generally not terminated by the death of a tenant and the tenant’s estate is responsible for any rents due and owing under the agreement. A court-appointed personal representative (in Kentucky, called either an executor/executrix or an administrator/administratrix, depending on whether the deceased had or did not have a last will and testament), however, may negotiate to terminate the lease early. But, as you’ll see below, only the court appointed personal representative has authority to act on behalf of the deceased tenant after the tenant has died.
Emergency Contacts and Others Wanting Access to the Premises
Remember how you asked for emergency contact information upon move-in? Letting the emergency contact know what happened is important and helpful to all parties. But do not let either family members of the deceased tenant or the emergency contact into the property; only a court-appointed personal representative of the deceased’s probate estate is authorized to act on behalf of the tenant after the tenant has passed away. That personal representative can be given access to the premises, but only the court-ordered personal representative. No one else should be given access to the unit.
Except…there’s always a narrow exception, right?) In two specific situations, limited access can be granted: to pick out burial clothes or to look for a Last Will and Testament. Good practice for allowing these two exceptions is for two staff members to accompany the person being granted access to ensure that nothing in the property is disrupted except for the specific items being obtained. Even better practice would be to videotape the entire encounter. But if it is for any purpose other than those identified in this paragraph, no admission to the rental property should be given without a court order.
Reclaiming the Premises; Non-Payment of Rent
To get the rental premises back and to make it ready for another tenant, the lease needs to be terminated. If there’s a personal representative appointed by the probate court, that can be negotiated with that individual. Or if the court-appointed personal representative/administrator/executor fails to pay the rent, the ordinary eviction process for non-payment could be commenced with notice being given to the personal representative who has been authorized by the court to handle the deceased tenant’s affairs.
If there’s no probate (which is probably more likely), it’s important to give notice to the “Unknown Heirs” of the tenant. To accomplish this, post your usual 7 Day Notice with notice to those Unknown Heirs. It’s probably best to serve that same notice with copies to the emergency contact as well as any family members of whom you are aware.
With notice given to either the personal representative or the unknown heirs, as appropriate, proceed with the eviction according to standard operating procedure (file the forcible detainer action, obtain a judgment, wait out the appeal period, obtain a writ of possession, set out property).
Complications with Affordable Housing
The process outlined above for evicting a deceased tenant is complicated for properties receiving certain rental subsidies. For example, HUD regulations limit the subsidy to the earlier of 14 days after death or when the owner receives possession of the unit.
As outlined above, it is not feasible for the owner to receive possession of the unit in less than 14 days (very doubtful a court-appointed personal representative would have been appointed in such a timeframe). In some other states, there are more specific rules on when a property is deemed abandoned which provide clarity on this subject — but not in Kentucky.
As a result, Kentucky landlords with affordable housing face a more complicated situation of balancing the needs of maintaining unit subsidy with following eviction procedures and the rights of their deceased tenants.
To learn more about Brackney Law Office, PLLC’s landlord-tenant and forcible-detainer practice, click here. Or you may contact us as well.
The information contained on this blog is for general information only and should not be considered to be legal advice. Because your situation is unique, you should consult with an attorney to determine what course of action is right for you.
Photo Credit: HouseBuyFast