Accessing the Decedent’s Apartment
Rental dwellings can also pose challenges. Who can gain access to the dwelling to secure the decedent’s personal property and what if the landlord refuses to allow access?
If the decedent was renting a dwelling rather than residing in a home they owed, the decedent’s family members or heirs will typically need to contact the landlord to access the dwelling.
The landlord may simply allow the person access to the dwelling without giving it much thought. This may be permissible under the terms of the lease. It may also be implied by having the person named as an emergency contact in the landlords records.
The landlord may deny access out of fear that the decedent’s property will be taken from the dwelling and that this will prevent the landlord from recovering unpaid rents. Many leases provide the landlord with the ability to seize the tenant’s nonexempt property for payment of back rent. This type of clause is permissible under Texas law. But the language of the lease should be examined, as it is common to require the expiration of a certain period of time after notice before the landlord can seize the decedent’s property.
If the landlord denies access to the dwelling, the person making the request should ask the landlord to provide a written statement that the person is being denied access. As explained below, this can help in obtaining a court order to access the dwelling.
Application for Emergency Intervention
If denied access to the dwelling, the family member or heir may need to file an application for emergency intervention with the court to get access to the dwelling. The application can authorize access to the dwelling, allow the applicant and owner to prepare an inventory, and/or order that the personal property be removed and stored for safekeeping.
The application for emergency intervention must be filed no sooner than three days after the decedent’s death and no later than 90 days after death. When possible, the application should include as an attachment a written statement from the landlord denying access to the rental dwelling. The application can include a request for attorneys fees, which, if there are no other funds available, can be paid by a financial institution that holds the decedent’s funds. The request for attorney’s fees and payment from the financial institution have to be listed in the application.
It should be noted that the application should not be filed if the formal probate process has started. In that case, the personal representative would be authorized to access the rental dwelling given their powers as the personal representative. They can access the property by providing the landlord with a copy of their letters testamentary or letters of administration.
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