State Specific Question About: TENNESSEE (TN)

Your lease will terminate because it is a legal contract, and contracts have no biding on a person who is not alive because specific performance is impossible. What you choose to do about what she leaves behind is another matter.

Sid's absolutely right, unless your lease contract has specific wording that holds her estate responsible in the case of her death. Read your lease...

You do need to find out her next of kin - are they listed on her application? It may also help to know if she has a will. Perfectly nice relatives can become horrible greedy people if they think someone's going to stiff them out of Grandma's silver. Find out now who should remove her belongings, or depending on if she has a will, you may have to change the locks and only let in the executor of her estate. Make sure they know that you will need to be paid, just like Sid says.

We had something like this happen to us a few years ago. This board helped us more than I could ever imagined.

A lease or rental agreement cannot over ride probate law. Sorry. You do all the creative clause writting you want to. If put before a judge it will fail.

It comes down to a very different sitch for each LL and TT where Tenant death is concerned. There is the legal way which may cost the LL more while upsetting the tenants family. That is to change the locks or padlock the unit until a person comes forward with the legal documents that they have opened probate. Don't allow anyone in but one person that you go with to get clothes for the funeral. Tough call to make tougher to do but it can be done and is the most legal.

Get a repour going with the tenants kin.

Let them in and try to get the unit completely empty of the tenants possessions.

Risky in some cases. Because of various family members getting greedy or trying to control when they are not the correct person and they don't have the role of executor appointed by the probate court.

Then you have the tenants relatives trying to live in the unit for free for as long as you let them.

Not easy. Very rarely does it go smooth.

I wish there was something we could put in our rental documents that would hold up.

It's the age old battle between two courts that seem to operate independently from one another.

Plus State and federal probate laws have not had reform in something like a 100 years or more?

I had a tenant pass away. (fortunately not in the apt)

Its bad news for LL's in Ontario. We will probably loose the rent owed. Then we must make the apt available for the family to take the pocessions and we dont get any rent while this is happening. Then we can be stuck with any remaining pcoessions to be disposed of. (in toronto it cost $ to get rid of this stuff, you cant just leave it at hte curb).

Be happy she isnt going to die in your apt. My LL friend had this happen to her.

It cost her over $1200.oo for a environmental cleanup after. Then there is the stigma of a death in your apt and wondering when the new tenant is going to call to say she is leaving because of it.

Josh is right of course on the contract thing (where is my brain today???)

Echo did you have a probate lawyer look that over and say it will hold up in your state?

I know in CA it would not hold up.

In CA if i had the tenant sign and notarize this clause. The tenant passes and they had a will.

Or a living trust or even if another person is the one who filed with the court and is the executor your clause would fail. If you had let someone else in and they had cleaned house you maybe held accountable for the value of the deceased tenants property.

yes Elia I have it but I won't post it. I'll send it by email. I'm not in the mood to be challenged on copyright on this issue when there is little help available as there is.

I have an article written by a Florida attorney. You need to check your own state laws to see what applies to your case.

Among the most vexing questions in the Florida landlord and tenant field is the one titling this article. Almost every owner or manager has learned by rumor or official report that a renter living alone has passed away and now they need legal advice on how to proceed. A simple call to your attorney would suffice, but for sheer entertainment value the manager may want to deliver the news in person. The death notice will almost certainly cause the attorney’s respirations to increase, his brow to furrow, and possibly even bring small beads of sweat to his forehead. He knows he’s got a problem.

The recurring dead tenant scenario raises thorny questions but, sadly, Florida law provides few definite answers. Unlike other states, Florida’s legislature treats tenants as immortals. The Florida Landlord and Tenant Act omits any mention of a tenant in life becoming a tenant in death. More will be said later on current efforts to prod the legislature to address this problem. For now, though, the quick and simple advice at the point of impact is:

CHANGE THE LOCKS!

The dead tenant’s property belongs, at the moment of death, to a legal creation called the Estate of Tenant X. The estate will include the property left behind in the apartment. The apartment complex can be held accountable by the estate in court for any loss of the tenant’s property caused by unauthorized access given to thieving relatives or friends of the deceased.

And just who is “authorized” to gain access to the deceased tenant’s apartment? Certainly a co-tenant on the lease can come and go as usual. But for the deceased sole occupant, the only safe answer is: Anyone that a probate judge says is authorized. This points toward the second piece of advice: wait for someone to show up with a court papers. If done correctly, these papers will unequivocally allow a certain person to exercise control over the tenant’s belongings found in the apartment.

THE WAITING GAME

This second stage of “waiting” may actually require concentrated effort by the landlord depending on the facts at hand. Under the most favorable circumstances, the tenant will have surviving family and friends who will actively seek to settle the tenant’s remaining property. If so, it is possible that a survivor can utilize a portion of the Florida probate code titled Disposition of Personal Property. To qualify, the tenant must have property of only modest value in the estate. After determining the approximate value of the estate, the landlord (or the landlord’s attorney) can advise the survivor that this special probate provision allows a court to release a dead person’s assets (not exceeding $6000) to someone who has paid for final expenses such as funeral costs or medical bills within 60 days of death. This arrangement follows the customary end of life payments on behalf of deceased loved ones and it is designed the hasten the reimbursement of family and friends who have buried or cared for the deceased.

Should the tenant’s estate qualify and a family member or friend be eligible for this procedure, that person simply goes to the probate clerk with a death certificate, receipts for expenses paid, and an inventory of the tenant’s property (and a will if there is one). No attorney is required to apply for the tenant’s property and if questions occur the clerk must help the person fill out the forms. Since the filing fee is only $100, landlords and owners may consider assisting the survivors with this cost as a means of expediting the return of the apartment.

After filing the petition, the judge will give a swift response, usually within 24 hours. Typically a letter or brief order will issue allowing the petitioner to obtain possession of the decedent’s personal property. After presenting this paper to the management, the petitioner is authorized to claim the tenant’s personal effects and cart them away.

Again, this rapid fire process is the best result to hope for. What happens if there is no family or friend or if they are unwilling to spearhead even a simple probate case? Well, the matter becomes difficult. Here, in an exercise of pretzel logic, the landlord or owner himself can file for probate of the tenant’s estate as an “interested person.” After establishing an estate, the landlord oddly enough can then sue the estate for nonpayment of rent and recover the unit legally. Not surprisingly, this Byzantine procedure could be expensive and take months to complete.

NO SHORTCUTS

Given these unappealing legal alternatives at the time of a tenant’s death, the landlord may search for a way to avoid the presently harsh consequences of properly disposing of a dead tenant’s belongings. Given the potential liability, though, the landlord should resist the temptation to wrongly simplify an inherently complicated situation.

Which suggestions might beckon to the aggravated landlord or manager? A common device seeking to circumvent the probate code is a standard form allowing the tenant to designate someone to enter the apartment after their death. It sounds perfectly sensible, but legally, this could be a trap. For a person’s writings to be enforceable after death, they must show a testamentary intent and conform to the formalities for making a will. The intent can be argued, but almost certainly the landlord’s form will lack the formalities of the probate code. Therefore, the authorization cannot be honored even in probate. Therefore even this good faith nominee must be restricted from access until they obtain the court’s permission.

Similarly, a landlord cannot acquiesce simply to allow anyone with a key to enter the deceased tenant’s apartment. It might occur to the landlord that the tenant gave the key bearer implicit consent to enter the premises after death. But it is easy to see that a key given by the living tenant does not serve to give the key holder consent to enter the dead tenant’s apartment for any purpose. Adopting a laissez-faire attitude could be negligent when merely changing the locks would have permitted an orderly disposal of the tenant’s estate and prevented wrongdoers from pillaging the apartment.

Another shortcut to avoid is trying to fit the deceased tenant problem into the ready made remedies of the Landlord and Tenant Act. Remember, Florida law does not address the precise dead tenant quandary. So the landlord should not twist the Act to view the deceased tenant as if they abandoned the rental unit under Chapter 83. Some might argue, for instance, that Florida law allows a landlord to retake a rental unit if the tenant, without prior notice, has been absent for more than one-half the payment period (usually 15 days) and the rent is unpaid. As a result, they would say, the deceased renter, being absent and non-paying, exactly fits the bill. However, it can be delicately pointed out that statutory abandonment presupposes a voluntary act when the tenant leaves the unit. The dead tenant hardly agreed to depart the premises under these dire circumstances. Therefore, Chapter 83 will not easily help a landlord to label the tenant’s death as a skip without notice.

In the same way, landlords should reject the urge to officially end the tenancy by filing an eviction for nonpayment. This may also seem attractive because there is unpaid rent and the judge will authoritatively order the tenant’s removal. Consider too that personal service is not required and, without a response from the tenant, the judge will not know the tenant’s status when he signs the papers. But this only as compounds the problem of treating deceased tenants as if they were alive, not to mention the impropriety of shading the truth when submitting papers to the court.

THERE OUGHTA BE A LAW!

These caveats for landlords looking for simple solutions speak to the current state of things. Looking to the future, Florida at last seems poised to join Ohio, Alabama, California, Illinois and others states in removing the dead tenant scenario from the probate court. To accomplish this, the legislature may in fact bend the rules in ways a landlord cannot. While the landlord cannot decide a deceased tenant has abandoned the tenancy, the legislature can. And so in 2006, a bill was filed amending to treat deceased tenants in a way similar to abandoning tenants. “The landlord shall not recover possession of a dwelling unit except: When, 45 days after the date of death of the tenant, the rent is unpaid and the landlord has not been notified of the existence of a probate estate or name and address of a personal representative.” This provision would allow a landlord to wave goodbye to eviction and probate and simply retake the dead tenant’s apartment so long as a) 45 days have elapsed since the death, b) the rent is unpaid, and c) no notification was made of a probate of the tenant’s estate.

This legislative proposal was a panacea for the problems plaguing this unhappy marriage of probate and landlord and tenant law. By avoiding litigation and giving a deadline for retaking the premises, the terms of the bill meant less stress and better planning for landlords and their attorneys. However, the bill withered on the vine and never left the reviewing committee. It is rumored that the bill will be reintroduced in 2007. Readers are encouraged to contact their representatives in support of this law.

In conclusion, until current law is changed, the death of a tenant is a problem for landlords. The degree of difficulty is at first uncertain but could range from a simple probate procedure to a filing a probate case with a subsequent eviction. No landlord wishes to face these hard alternatives, but no attorney will advise shortcuts such as eviction, abandonment or written prior consent by the tenant. For the present, the answer lies with the legislature to provide a clear and less expensive solution to this question of what happens when a tenant dies.

go to court and probate the Will. You will receive some type documentation (here it's called Letters Testamentary) appointing you (or whoever it actually is) executor. That document is what the landlord wants in order to allow someone inside the property. Get in, remove his belongings, clean, pay the rent and move on.