Dealing with your loved one’s rental agreement

Key takeaways about your loved one’s lease

• If they lived in a rental, your loved one’s passing doesn’t break their lease. The estate becomes responsible for the remaining lease duration.

• Many landlords will allow you to break the lease, but they are not required to unless there is a clause in the lease agreement.

• Even though the estate is paying rent, the family cannot move into the property without a new lease. You may be able to sublet it out, however.

• If other family members were already living there, they will be allowed to stay for the rest of the lease.

If your loved one passed away while living in a rental property, you will likely have questions about what will happen to the space, and to their lease. If you are the executor of the estate or a close family member, dealing with the property, the lease, and your loved one’s things can be a lot to handle, particularly at this difficult time. In most cases, a landlord will be sympathetic to your situation and make it all much easier for you. But it is nevertheless important to know your rights and responsibilities when it comes to the rental.

What happens to the lease

For better or worse, the death of a tenant does not automatically change the terms of a lease. Just like their personal possessions, debts and contracts, responsibility for the rental property transfers to the estate or next of kin. 

Although the rules vary from region to region, in most cases, the lease remains active unless you are able to come to an agreement with the landlord. Make sure you research the laws in your loved one’s state and municipality; ask a lawyer for help if you are not sure.

Some leases may have a clause laying out how they should be ended if the renter passes away, so it is important that you locate a copy of your loved one’s lease and read it carefully. It will likely give details about what you need to present to the landlord, and how much longer the lease will last for.

If there is no such clause and your state or city does not cancel leases for those who have passed away, the estate will be liable for rent until the lease ends. However, many landlords will be compassionate and agree to end the lease as soon as the rental property is cleared out. A couple weeks to one month after the person’s passing is typically considered a reasonable amount of time to vacate the property and return the keys to the landlord, but this is something that needs to get worked out on a case-by-case basis. The executor or administrator of the estate will then be responsible for removing the person’s things from the property so the space can be rented again.

There may be other options if the landlord does not allow you to break the lease. Some states, New York for instance, allow a renter to sublease their property until the lease ends. Thus you can assign your loved one’s lease to a third-party subletter, and the estate won’t have to bear the financial burden of paying rent until the end of the lease. You must make the landlord aware of this arrangement in all cases. Note as well that there are some kinds of properties that cannot be subleased, such as rent-stabilized apartments in New York. 

If you can’t or do not want to break the lease and the landlord refuses to allow you to sublet the property to someone else, you can bring the matter to court, which may consider the landlord’s refusal “unreasonable.” In this instance, the lease would be considered broken and you are off the hook. 

Keeping it in the family

Because you cannot give something away that doesn’t belong to you, a tenant, who does not own their rental property, cannot leave it to a beneficiary in their will. It may be possible for someone in the family to take over the lease, but they will have to negotiate this with the landlord and possibly the court system. 

Even if the estate continues to pay rent on the space for a given period of time, this does not mean that a member of the family can take over the property, live there, and start treating it like it was their lease. Legally, the estate is still renting the property, but this is considered a legal occupancy rather than a physical possession. The executor or administrator of the estate can’t live in the apartment themselves or let someone else live in it unless they clear it with the landlord. 

The exception to this rule is anyone who was living in the rental property when the tenant passed away. So if you were living in a rental apartment with your children and your spouse, and your spouse was the tenant named in the lease, your landlord cannot automatically evict you and your family after your spouse passes away. In this case, the family can continue to live in the apartment until the lease ends. 

If the property is rent-controlled, a family member who lives there can take it over as long as they qualify for succession rights, even after the lease ends. Succession rights only apply to rent-controlled apartments in New York City, Washington, D.C. and some cities in New Jersey, Maryland and California. Rent-control is a legal system that favors tenants and forces landlords to keep rent low, so rent-controlled apartments can be really hard to come by, and succession rights can be extremely valuable. 

This is another situation in which laws vary from place to place, but if you are trying to take over the lease of a rent-controlled property, you will typically have to show proof of residence for some time—two years is the minimum in New York City and San Francisco—and a close familial or family-like relationship. So for example, if you have been living with a parent for some time, and they are listed as the primary tenant on the rental agreement, you may qualify for rights of succession after they pass away.

Vacating the property

Although the rental property is under their authority, a landlord has no right to touch or remove a tenant’s things after they pass away. The executor and the landlord will need to work together to make a plan for removing the items in the apartment. Once the property has been emptied and cleaned out to the landlord’s satisfaction, the executor or next-of-kin will need to sign a form called a “Release to the Rights of Possession.” This form states that the tenant has vacated the unit and that they have removed all of their possessions. Once that form has been signed, the landlord is free to rent the property to a new tenant. 

Just as when any other tenant vacates a property, the landlord may use your loved one’s security deposit toward unpaid rent, repairing actual damage (not simply normal wear and tear), and cleaning excessive dirtiness. Any money left over must be sent to the executor, along with an itemized list of what was deducted and why. If the landlord claims that they are owed additional money to cover repairs or cleaning, they will need to petition the estate and go through the legal system. 

As you work with your loved one’s landlord to negotiate breaking the lease, the condition of the rental property, and what they may be owed, it is important to stay honest and clear about your expectations and capabilities. Full transparency and openness is the best way to handle what is already an incredibly tough situation.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.