In previous articles I’ve addressed what a landlord should do if a tenant dies in the middle of a lease. However, I’ve not discussed the topic from the other side. So what happens to a tenant if the landlord dies?
I’m not an attorney, and I certainly cannot cover every possible scenario. However, I can address some of the basic questions that may arise. As always, the discussions here pertain to apartments in the Chicago area.
Question 1: Do I have to move out?
No. Your lease is part of the property, just like the refrigerator, the garage and the roof. If the owner sells the building, he/she sells your lease along with it. If the owner dies, your lease continues. You do not have to move out automatically. Your landlord’s heirs cannot suddenly kick you out because they want to move in.
Question 2: Where do I send my rent?
You should continue to send your rent to the address listed on your lease. Once the landlord’s estate is settled, the probate attorney and/or the new owners who have inherited the property will send you written notice of any changes.
Question 3: Who’s the new owner?
This is probably the most complicated question. It may take some time for the new owner to be determined, depending on how the property title was held. In other cases, the new owner could be able to step in within a matter of days. In the interim, the executor of the estate will become your main point of contact. This could be someone named in the landlord’s will or a court-appointed probate attorney. Either way, until you are notified in writing of a change in ownership, make sure all dealings regarding your apartment are handled in writing to the landlord’s address as listed on your lease.
If They’re Incorporated
If your landlord was incorporated – either as a corporation or LLC – with other partners, then you have nothing to worry about. The company will survive the death of the landlord. However, if the landlord was the only partner in the company, the entire company’s assets (including your lease) will pass on to the landlord’s heirs.
If They Have Heirs and a Legal Will
If the landlord had a legal will and designated heirs, the property and your lease will pass on to the heirs specified in the will. These heirs will become your new landlords automatically, although it may take them some time to figure out who will be handling your specific concerns.
If They Have Heirs and No Will
It’s highly unlikely that your landlord will die without a will (“intestate”) but if so, the ownership will be determined through Cook County probate court. Illinois has a very specific order of preference for distributing property among remaining family. Children and living spouses are the first option, followed by parents and siblings, grandparents, great-grandparents, and if all else fails, the property goes to the next closest surviving relative. However, the property may well be distributed evenly among many relatives, so your property could wind up the subject of dispute between squabbling relatives. The most important thing in this case is to remain in close contact with the probate attorney appointed to handle the estate, as any official changes in ownership will come to you from them.
If They Have No Heirs and No Will
Again, this scenario is highly unlikely, but in the case that your landlord had no will and no surviving family, your building will become property of Cook County. (In legal terms, the property “escheats” to the county.)
If The Landlord Owes Outstanding Debts
What if your landlord died while still owing money to somebody? Regardless of what the will says, the landlord’s creditors have to be paid first. This may mean that your apartment will transferred in order to settle a debt. Three common situations where this could occur would be if the landlord had a mortgage on the property, if they had not yet paid contractors for major renovation work at the building, or if they had unpaid back taxes. Either way, the creditor gets your building and you along with it.
Question 4: Can I use this as a reason to break my lease?
Not really. The new owners who inherit the estate probably wouldn’t fault you for wanting to head out early, but since your lease is still valid and your apartment is still intact, you’ll have to follow the same lease break routine that you’d have followed if your landlord was still alive. Please be gentle with the relatives of your landlord when you go to discuss leaving – it is always a delicate and difficult situation.
Question 5: What if the owner lived on site?
All of the above is pretty much consistent if the landlord lived in the same building with you or not. However, if the landlord died in the building (I know, ew!) then you may have grounds for breaking your lease. A death on the property requires special clean up and care. Your property may be sealed for investigation by the coroner. If you can’t get into the property or it’s a health hazard, and the problem continues for over 72 hours, you do have a right to break your lease. The only problem is that you have to provide written notice to your landlord asking them to correct the problem, and figuring out who your new landlord is within 72 hours can be difficult.
Regardless, the most important things in this situation are to find safe substitute housing immediately – a hotel if you have to – and to cooperate with the authorities and the heirs in order to find out when you can safely return. This sort of extreme scenario would merit a call to an attorney to ensure that your needs remain prominent in the minds of those dealing directly with the death.
Question 6: What if my lease expires before the estate is settled?
Complicated estates can take months or even years to parcel out between heirs.
If you’re on a one year lease, it may well be that your lease expires before everything is resolved. Your lease expiration date, like all other aspects of your lease, remains valid even if the owner dies. In Chicago, a landlord has to provide you with at least 30 days written notice if they don’t intend to renew your lease. Unless your landlord did so before death, you have the right to stay in your apartment on a month-to-month lease.
If you choose to move out at the end of your lease, your course of action should be to send a letter stating as much to the same address where you send your rent, at least a month before the last day of the lease.
Question 7: How do I get my security deposit back?
This is probably the most complicated of all of the questions. The first step should be to provide your forwarding address to the executor of the estate when you move out, along with a reminder that they must return a list of itemized deductions within 30 days, and the balance of your deposit, with interest, within 45 days.
If the estate does not return your deposit before the deadline, you do have a right to sue them to get the money back.
Overall the most important things to remember in this kind of situation are:
- Make sure your voice is heard. It is very easy in the process of settling an estate for the heirs to forget about the deceased’s renters. As soon as an executor is appointed, you must remain a firm presence in the process so that your needs are not forgotten.
- Be kind and patient. The person who inherits your building may not have any experience as a Chicago landlord. Our landlord-tenant laws are some of the most complex in the country. It takes a while to learn how we do things around here. You’ll have to take some time to read up on the rules yourself, and you may have to gently coach your new landlord on how to do things the right way. Remember that they just lost a family member – please don’t take their inexperience as a reason to take advantage of them.
- Seek help if you need it. These sorts of complicated situations are why professionals exist. You may deal with grief yourself over the loss, even if the landlord was not a good friend. If the estate spends a long time in probate you may need to consult with an attorney. Like it or not, the death of your landlord means that changes are headed your way, and not all of them will be predictable.