To Rent or Not to Rent the House of a Deceased Owner

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate Administration Attorney

Often times, beneficiaries who are left a home under the Last Will and Testament or Trust of a deceased family member can’t decide what to do with the property. It is either sell it or rent it. When asked, my opinion, I often discourage the rental of the house. Renting was a popular option during the real estate recession/depression but really isn’t the best solution today. Some clients suggest a short term rental while they search for a buyer and then have us prepare a rental agreement but I warn clients once a tenant is in, it is not so easy to convict him or her because of the New JerseyAnti- Eviction Act and slowness of the Court system.

In many cases, when clients have rented out the house to a tenant while it seeks a buyer, the tenant just refuses to vacate and the landlord has to file an eviction proceeding in court. Then the tenant files for bankruptcy which stays the Landlord court proceeding for many months and even years. Finally, after many thousands of dollars in legal expenses as well as Court costs, the eviction occurs but sometimes a Sheriff has to actually, physically, come to the house to cause the eviction.

This is something to think about before you go and rent out a house. The foregoing does not even address the probable damage that will be done by the tenant to the property.

To discuss your NJ estate administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing consultations if you are unable to come to our office.

Please go to our Landlord Tenant site ( for the many risks associated with being a landlord in New Jersey.

Death and Dying

sparrowNobody really wants to spend time talking about death and dying. But inevitably we must. Usually, we don’t spend enough time on the subject.

It’s been a year since my mother, Velma,  died last January. I think of her every day. If anyone told me how hard it would be to lose her, I would not have believed them. For several years before her death, I had myself convinced that when the time came it would be a blessing. Given the change in her that Alzheimer’s created, I did tell myself I had lost her already. That was a lie, but I only knew that after she was truly gone.

We had a perfect service for Mom. Our pastor’s daughter sang the most beautiful version of “God’s Eye is On the Sparrow” that I have ever heard. But I’m not sure it was what she wanted. Because I lost her Funeral Box. Yes, Mom thought these things out, and she went to the trouble of picking out some verses she wanted, and some songs. She saved some funeral bulletins she liked. It was all in a folder in a banker’s box. She and dad had pre-written their obituaries, which were obviously somewhat incomplete given that they were alive when they wrote them. But I sure wish I would have had that Box when we needed it.

As a matter of fact, my brothers and I are 0-2 on the Funeral Box, because when Dad died in 2008, we didn’t even discover the box and the folders Mom and Dad had prepared until we were were looking at old pictures a couple days after the funeral. As it turned out, our choices were fairly spot on with what Dad had written, and we patted ourselves on the back.

If I had to guess, I would guess that I threw Mom’s funeral plans out that early fall evening the year after dad died, when I was having the brush bonfire which led to my great idea to burn a bunch of Dad’s old, no-longer-relevant medical records. I’m guessing I had tossed the box into the fire without looking, thinking Dad did not need his funeral plans anymore –  so yet another box I could get rid of – and forgetting Mom’s were there too. That decision might possibly have been made after a second glass of wine.

Both of our parents had beautiful funerals, despite our complete failure to follow their written guidelines. Because the funerals were beautiful to us. I doubt that Mom was planning on dying from Alzheimer’s when she planned her funeral, so our choices of song and verse might have reflected something she never gave thought to. When we closed her service with Alison Krause’s version of “I’ll Fly Away,” the words “Like a bird from these prison walls I’ll fly” signified to us her freedom from the affliction of the disease that had imprisoned her body and mind, and a return to the whole spirit she deserved to be.

Now that I am a funeral planning veteran, it is easier to talk with my clients and their families about these things. I want to share some bits of information about funerals and Medicaid, and some other ideas about the funeral process.

Know Your Rights When Shopping for Funerals: The Federal trade Commission has a detailed Consumer Rights rule regarding funerals and funeral planning. A booklet explaining the rule can be found here. Under the rule, funeral homes must give you a price list of all  services and items, called a General Price List, when you visit the home. Also, funeral homes must allow you to buy only those services you want. While they may offer a “package” you are not required to buy it.  Another provision is that you are not required to purchase your casket or urn from the funeral home. (In fact, we got Mom’s urn from TheUrnCO for about a quarter of the price of most funeral homes.) If you want a burial with a casket, did you know you can buy it at Costco?casket

Become an Educated Consumer and Save Money at the Same Time:  Before Mom died,  I was asked to give a presentation on advance directives (such as powers of attorney) to a group called the Funeral Consumers’ Alliance. As I was getting ready for the presentation at the event, I picked up a brochure, and realized I had seen it before. In the Funeral Box. It occurred to me that possibly my parents had been members. The kind woman representative who was there that night took Mom’s name down and said she would check. The next day, she called and said sure enough! Mom was a member. Because of her membership, Mom was entitled to a special funeral rate through a selected funeral home. When the time came, I used that benefit for my Mom. I may not have picked out the verses she wanted, but I got her the discount that would have made her proud! The one-time membership fee is very reasonable. This organization has many chapters throughout the country, and the Milwaukee Chapter can be located at this link.

Medicaid and Funerals:

When applying for Medicaid, many types of burial arrangements are excluded from consideration as assets, or are given special treatment.

For a single person, these are:

Burial Spaces owned and by the applicant, including 

  • Plots, vaults, caskets, crypts, mausoleums, urns, or other repositories customarily used for the remains of deceased persons
  • Necessary and reasonable improvements upon the burial space with items such as headstones, markers, plaques
  • Arrangements for opening and closing the gravesite
  • The space(s) must be for the use of the applicant or their spouse, minor or adult natural, adoptive, or stepchild, brother or sister, natural or adoptive parent, or Spouse of any of the above.

Because these spaces can be purchased for immediate family members, the applicant may purchase burial or mausoleum spots for all immediate family members, and pay for burial containers and arrangements.

Burial Funds of up to $1500: Funds must be separately identified, and the ability to exclude these funds may be reduced if the applicant also has certain other assets such as a whole life insurance policy.

Irrevocable Burial trusts up to $4500: The applicant must be the owner of these trust funds. Keep in mind that if the applicant’s preplanning includes a burial trust and also burial spaces as listed above, more than $4500 may be protected.

Irrevocable Burial Insurance Policy: A burial insurance policy is a contract whose terms preclude the use of its proceeds for anything other than the payment of the insured’s burial expense. It is an insurance product sold by a state-licensed insurance company and is typically funded with an annuity or life insurance policy. To be excluded, the policy must name the individual’s estate as the beneficiary of any remaining funds, not a family member.

Life Insurance-Funded Burial Contracts: A life insurance-funded burial contract involves a person purchasing a life insurance policy on his or her own life and then assigning either the proceeds or ownership of the policy to a third party, generally a funeral provider. The purpose of the assignment is to fund a burial contract. If the applicant makes this assignment irrevocable, then the asset will be considered unavailable. Rules apply as to the amount a person may designate for various items and services. A burial contract that is funded with a life insurance policy must be in writing and must contain all of the following:

  • Name of funeral home and the insurer.
  • Statement of funeral goods and services.
  • Effect of canceling or surrendering the insurance policy.
  • Effect of changing the assignment of the policy proceeds.
  • Nature and extent of any price guarantees for goods and services.

For a Married Applicant, the Medicaid exclusions are:

All of the above, plus funds set aside for burial in any reasonable amount, as designated by a written statement. This gives us greater latitude, because an existing bank account or whole life insurance policy could be designated as set aside for burial. However, upon the death of the first spouse, we must then use the more restrictive options for single individuals when planning for the second spouse.

Finally, Talk it Over, Perhaps Put It in Writing: I am constantly urging clients to talk with their loved ones about end-of-life preferences, including their wishes for medical treatment, stopping medical treatment, hospice, quality of life, and values. This conversation might also include funeral plans. Wisconsin has an advance directive specifically for funeral planning, called an Authorization for Final Disposition. It can be found here. When properly executed, it is a binding legal directive. Unfortunately, the execution requirements are somewhat cumbersome so I don’t often use it with my clients unless there is some reason to believe there will be a dispute over the funeral planning. But it can serve as a good planning tool even if it is not formally executed.

(Just make sure one of your kids doesn’t toss it in a bonfire before you die.)