This is a common question with numerous semi-complicated answers depending on certain facts. I will try to explain the most common questions Landlords have when a current Tenant dies.
One common misconception, is that once a Tenant dies their lease is terminated or canceled. That is not necessarily true. A Personal Representative or holder of a Small Estate Affidavit may continue to the pay the rent as normal while they administer the deceased Tenant’s estate.
Who has a right to access the apartment, take personal belongings, or receive a security deposit refund?
- There are a number of ways an heir or other interested party can acquire the right to a deceased Tenant’s apartment, belongings, and return of security deposit. Make sure you keep a copy of whatever document they provide and ask an Attorney if this document gives them the right and protects you if you allow access to the apartment.
- The most common is by being appointed the Personal Representative (or Executor) of the deceased Tenant’s estate. Once appointed, that person, now steps into the shoes of the deceased Tenant and has the duty to inventory, dispose of, and handle all of the Tenant’s affairs. If the estate is over $50,000 in value they still must go through the Probate process and be appointed as Personal Representative.
- If the tenant’s total assets are under $50,000 a Small Estate Affidavit may be used, which gives that person the rights as if they were appointed a Personal Representative by the Court. This does NOT require filing anything with the Court.
- The 3rd and less common way for someone to gain access is by having an Affidavit for Information only. This affidavit allows a person to access the apartment, review financial documents, and other things to determine the estimated value of the state prior to them deciding if it must be probated or they can use a Small Estate Affidavit.
What do I, as a Landlord have to do?
- A Landlord should NOT provide access to any third party (i.e., give them a key or unlock the door) without them having provided proof as set forth above.
- Get a copy of any document presented to you giving this person Authority to Access. Can ask to see their driver license or other form of ID to prove they are the correct person. Keep copies in the Tenant’s file.
- A Landlord should NOT change locks or prevent a third party access who may already have a key. That is NOT the Landlord’s responsibility unless they have a reasonable belief that unauthorized people are stealing or damaging the apartment.
- A Landlord should work with the person, as it is in their best interest to allow that person to remove items and return possession as soon as possible. Chances are, in most cases the Landlord will have little recourse to go after an estate of a deceased Tenant for unpaid rent or damages as there is usually no or very little money.
What about Security deposits, 45 Day Letters (letter itemizing how security deposit was applied), and personal property left in the apartment?
- These processes stay the same, Landlord must follow the rules and laws regarding returning the deposit, sending the 45 day letter, and proper storage and disposal of personal property. Landlord can take it a bit further and reach out to an emergency contact if no person has contacted the Landlord regarding the deceased Tenant to try to determine who should receive letters, remove property, receive refund of security deposit, etc.
- If you have tried to return the security deposit and it was never cashed for some reason or another, and you have used due diligence and reasonably attempted to find an appropriate person, you should then turn the deposit over to Indiana Unclaimed. You have to provide as much relevant information as you can. Then the state of Indiana holds the money and waits to see if any interested party ever claims it. You do NOT want to hold money and be responsible for it.