Death of a Tenant: Here Comes the Heir ... with Police

By Richard Marmor, Esq.
AZSA Legal & Legislative Chair

The tenant died,” said the caller. “And someone is here with a copy of the tenant’s will. He is claiming he has a right to the contents of the space. He brought the police...” The conversation went downhill from there.

I receive many calls about dead tenants and angry – alleged – heirs, so I am doing two things:

First, to make your life easier, I am creating an explanation page that can be handed to someone standing at your counter claiming rights in a deceased tenant’s space (and to the police if necessary). I am attaching that explanation to the front of the AZSA Small Estate Affidavit form, which is available for free download to members from the AZSA website. You might want to download and preprint the explanation and form so you have it on hand to hand out, just in case.

Second, I am going to go over the rules one more time here to help you understand what’s in play. 

To begin with, there are two basic concepts we need to remember:

When a tenant dies, the lease continues. You still have a tenant. By law, you automatically get a new tenant: the estate of dead guy. The estate is a legal entity, and you owe the same duties to this tenant as you did to the prior live tenant. So anyone standing at your counter claiming rights to the contents was, and still is, a stranger to the lease.

You must never play judge and jury deciding who is or is not entitled to the unit’s contents. You are a landlord, not a court. The law decides who has rights to the estate’s property, not you. 

From time to time, as in the call I received, the police are dragged into the situation. They have no say there. This is a civil matter of contract and estate law. There is no criminal component. Sadly, even the police often don’t understand that. 

You need to be presented not with assertions of rights, but with proof of rights. Those can take one of two forms:

An order of court. If an estate has been probated, that is, finalized through the probate court, the court will have issued papers identifying people with the authority to deal with the estate’s property. You have to honor those written court orders. Probated estates are increasingly rare, however. 

A small estate affidavit. If certain conditions are met, the law provides a relatively easy shortcut, the small estate affidavit. With it, the person with the right to the property swears under oath before a notary public that those conditions have been met. Best of all, when you are then presented with this sworn affidavit, you must, as a matter of law, honor it and give the person access (retain the form for your records).

Just so you are aware, those conditions are:

(a) the tenant has been dead for at least 30 days, 

(b) the total value of the estate (excluding real estate) is not more than $75,000, and

(c) no one has been appointed by a court to take charge of the estate (and no action is pending in a court to appoint such a person), OR if someone was appointed by a court to take charge of the estate, that person has since been discharged from the role or at least a year has elapsed since the stated was deemed closed. 

The small estate affidavit is the most common situation, so AZSA has a free form of the affidavit available on the website for all members. You don’t have to remember the specifics of the conditions. They’re spelled out on the form, and all of this is explained on the information sheet I am adding to the form. 

 User’s of the AZSA Standard Form Lease have two more easy alternatives available to them. First, under the AZSA lease, possession of the gate code and key is deemed to be evidence of the right to access, whether the tenant is alive or deceased. 

Second, under paragraph 9, the death of the tenant is one of four special situations in which you can give the alternate contact access to the unit. (Note that AZSA has another free form on line you can download on which the alternate contact person affirms that the tenant is dead, thereby justifying giving him/her access to the unit.)

Finally, you are entitled to the rent. In all situations, the rent must be current before you allow access by anyone under any of the above situations.

For the record, all of this is explained on pages 67 to 69 of my book, Arizona Self-Storage Statutes Commentated, available from AZSA.

[This article deals with a law related subject at a general level and is not intended for you to rely on. You should consult a lawyer before making a final decision in a situation involving any legal issues.] 

Richard Marmor, Esq. is a self-storage consultant, facility owner and former facility operator in the Phoenix area.  He is also the founding President and current member of the Board of Directors of the Arizona Self-Storage Association, serving as Chair of the Legal and Legislative Committee. 

Source: Behind Closed Doors, AZSA Newsletter Archives