What should a landlord do when a tenant passes away in the rental premises?
The answer truly depends on whether the tenant has a Will, whether there are next-of-kin and whether the personal representative continues to pay the rent when due. We are not only dealing with a “body” but also the deceased’s possessions/goods. Furthermore, the deceased may or may not have a Will, may or may not have next-of-kin, and the deceased’s estate may or may not have sufficient assets to deal with matters.
The tenancy does not end simply because the tenant passes, but continues with the estate being obligated to pay the rent until such time as the tenancy is voluntarily terminated or terminated by the Courts, if necessary.
Body
First things first. Call emergency services (even if it is abundantly obvious that the tenant has passed).
Do not touch anything.
In most cases the police, EMS, and the medical examiner will attend. If you have information on the next-of-kin, it should be provided to the authorities, as they will make the call. If the next-of-kin are unknown at that time, the body will likely be taken to the Morgue. Otherwise, the family may have it removed to a funeral home.
Possessions - Next of Kin and a Will
If there is a Will, you will be dealing with the personal representative of the deceased’s estate, often referred to as the Executor, and/or their authorized representative. Make sure that you have obtained legal documentation confirming the identity of the executor and/or their representative (for example, a notarial copy of the Will and/or a letter of authority from the Executor).
The estate, through the personal representative, is responsible for paying the rent and eventually removing the possessions from the premises. You deal with the executor much like you would with an actual tenant except that I recommend notices should be delivered directly to the executor rather than simply posting at the premises.
The executor (or their representative) will also be the person who should conduct the final walk-through inspection. In the event of extra and reasonable cleaning costs, or in the case of damage in excess of the deposit, the estate is liable. The estate is the entity to which any remaining deposit monies are returned.
Possessions - no Next-of-Kin and no Will
No Next-of-Kin
If you have no information on next-of-kin, you must call the Office of the Public Trustee. The Trustee will arrange to have the premises secured (usually by changing the locks). They will conduct an initial investigation by taking photos and an inventory of the goods. Typically the landlord will be asked to attend and the final walk-through inspection can be completed at that time. Any un-used portion of the security deposit should be returned to the Trustee.
The Trustee will try to locate a Will and/or information on potential next-of-kin. If they cannot find a Will they must determine whether the estate has sufficient assets to cover the cost of removing the possessions from the premises. If the estate can cover the costs the Trustee will make the arrangements. If the estate cannot cover the removal costs, the Trustee will “abandon” the goods. The landlord can thereafter deal with the abandoned goods in accordance with section 28 of the Residential Tenancies Act.
No Will
In the event that next-of-kin arrive, the landlord must be aware that it is the estate and not the relatives to whom the rights of the tenancy extend. The landlord has an obligation to allow access to any authorized personal representative and the landlord could be held liable if an unauthorized person removes belongings from the premises. Thus, legal proof of authority is very important before a landlord allows anything to be removed.
If there is no Will, a personal representative may have to be appointed. This could take months.
In all cases, the estate will continue to have the obligation of paying the rent.
Rental Arrears and Damages
If the tenant was behind on rent or if the process has taken the matter into the next tenancy month or months, you must look to either the Estate or the Public Trustee for compensation. Often, there will be a freeze on the deceased’s accounts during probate. Thus, if you have a series of post-dated cheques or pre-authorized withdrawal, these may be returned NSF. It may be necessary to set up alternate payment methods with the Executor or Public Trustee.
The Executor may voluntarily pay the arrears or you may have to proceed to Court to obtain a judgment against the Estate and perhaps an order for vacant possession. That said, you should do your best to ascertain if there are sufficient funds in the estate to satisfy any potential award for rental arrears.
The Public Trustee will, if the Estate is possessed of sufficient assets, pay the arrears and any reasonable costs, (for which there is supporting documentation), upon the landlord’s completion of a statutory declaration (a sworn statement under oath). In the event of a dispute it may be necessary to obtain a judgment from the Court and perhaps an order for vacant possession (in which case you should likely speak to a lawyer).