When the last remaining tenant on the lease dies, many legal issues arise, but after the landlord obtains exclusive possession, a security deposit issue will often remain.            

AFTER THE SOLE TENANT ON THE LEASE DIES, HOW DOES THE SECURITY DEPOSIT CLAIMS PROCESS WORK?           

In most cases, the deceased tenant will not have an estate.   If no estate is opened within 60 days of the tenant’s death, no one else is residing in the rental unit, and the rental unit is not part of a federally administered housing program (including a tenant receiving Section 8 benefits), Florida law allows the landlord to take back exclusive possession of the rental unit.     Taking back exclusive possession of the rental unit will typically trigger the 30-day period to send the formal deposit claim letter.     However, if no estate has been formed, there is no one in place to receive the statutory deposit claim notice or formally object to claims made against the security deposit.

IF NO ESTATE HAS BEEN OPENED, HOW CAN THE LANDLORD COMPLY WITH SECURITY DEPOSIT CLAIM PROCEDURES?   

Unless an estate is opened, the technical answer is that the landlord is not in a position to comply with the security deposit claims process.    The landlord could petition the probate court to open up an estate, so that a formal claim letter could be sent to a personal representative appointed by the probate judge.   However, unless the landlord is holding a very large security deposit, this process would normally not be practical or remotely cost effective.      

 

Although this q & a format does not address in depth remaining personal property on the premises, if the lease in effect does not contain a good abandoned property clause that allows for personal property disposition in the event of death, and significant personal property remains on the premises after the sole tenant dies, it may be advisable for the landlord to petition the probate court to open up an estate so that an eviction action can be filed; if that occurs, he estate will also be in place to later address the security deposit aspect.     

WHAT IF A FAMILY MEMBER IS DEMANDING THE SECURITY DEPOSIT?  

If no estate is opened, family members or acquaintances of the deceased tenant have no legal standing to demand the security deposit or object to claims made against the security deposit.   If the landlord wants to return some or all of the security deposit, making a refund check payable to a family member of the deceased tenant for some or all of the deposit may feel like the right thing to do, but it is not the correct legal answer.     

A disgruntled family member could make trouble for an agent disbursing deposit funds to a landlord by filing a complaint with the Better Business Bureau or an administrative complaint with a consumer protection agency or FREC, but that would not change the family member’s lack of legal standing to sue for or receive the security deposit.      

NO ESTATE HAS BEEN FORMED, BUT THE LANDLORD HAS MANY LEGITIMATE CLAIMS, INCLUDING UNPAID RENT AND A BIOHAZARD CLEAN-UP EXPENSE:  ISN’T RETENTION OF THE SECURITY DEPOSIT PROPER?       

When good faith claims exist against the security deposit, and no estate is ever formed, many landlords will retain some or all of the security deposit, even though the law may not technically support this result.  It is a gamble the landlord must decide upon knowing the risks.   

THE TENANT’S SON HAD PRIOR KEY ACCESS AND CLEARED OUT THE UNIT SHORTLY AFTER THE TENANT’S DEATH; THE UNIT WAS IN EXCELLENT CONDITION, AND THE LANDLORD SUFFERED NO LOSS OF RENT.   WHAT SHOULD HAPPEN WITH THE SECURITY DEPOSIT?       

If no estate was opened, but the landlord has no claims against the security deposit, the technical answer is the deposit money should eventually escheat to the State of Florida after 5 years. Please watch our video on this and read the article on Unclaimed Funds.  If the refund check is made payable to the son, the landlord will probably not hear another word about the matter, but that is not the correct legal answer.   Again, it is a gamble the landlord must decide on knowing the risks.

WHAT HAPPENS IF AN ESTATE IS FORMED WITHIN 60 DAYS OF THE TENANT’S DEATH?     

If an estate is opened, the landlord will need to deal with the Personal Representative regarding the possession issue. In many other states this is called the “Executor”.  After the landlord obtains  exclusive possession of the rental unit, a formal security deposit claim letter will need to be sent to the Personal Representative for any claims the landlord still seeks to make against the security deposit, and a separate estate claim may also have to be filed.    The Personal Representative will have legal standing to litigate a security deposit dispute.

Practical Considerations

Often an estate is never opened. This leaves the landlord holding security deposit funds that cannot be used and could end up the property of the State of Florida.  The landlord simply needs to decide what to do knowing that there are risks, albeit usually small.  

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