The opinion provides the action to take when an overpaid beneficiary dies and the attorney for the estate fails to comply with the Probate Court's order for an inventory of the estate. The opinion contains several reasons for not filing a formal claim.

We have reviewed the documentation from SSA's Mid-America Program Service Center (PSC), requesting guidance on the question of whether to pursue a formal claim against the estate of Rosaura M~. According to the documentation, Ms. M~ (Decedent) was overpaid disability benefits in the amount of $5,319.00. However, the documentation further demonstrates that SSA recouped a portion of the overpayment prior to Decedent's death, on June 27, 2001, resulting in an outstanding debt of $4,728.00 owed the United States Government by her estate. Notably, the PSC's letter to Decedent, informing her of the overpayment of benefits, is dated July 30, 2001, some 45 days after Decedent's death.

In January 2003, the undersigned first made telephonic contact with Ernest M. P~, III, attorney for Decedent's estate. Mr. P~ and the undersigned discussed the outstanding debt described above, and Mr. P~ initially cooperated with the undersigned in order to contact the administrator of the estate, Mary R. V~. By April 2003, however, Mr. P~ terminated correspondence with the undersigned without disclosing whether he was able to reach Ms. V~ or to otherwise secure a refund of the overpayment.

The undersigned endeavored to compel Mr. P~ to comply with the Harris County, Texas Probate Court's order to file a complete inventory of the estate. The undersigned last made telephonic contact with the court clerk's office and was informed that it was unusual, though not unheard of, for such a lengthy amount of time to transpire from the date of the court's order and the filing of an inventory of the estate. Unfortunately, as of the date of this memorandum, the Court has not acted on the undersigned's repeated requests or otherwise compelled compliance with its order.

Thus, for the following reasons, we recommend that a formal claim not be pursued against Decedent's estate: (1) Decedent was not notified of the overpayment prior to her death; (2) there is no evidence that the estate contains any funds or items of value that could be used to recover the outstanding debt; and (3) the outstanding debt is a relatively small sum. In addition, Mr. Daniel D~ Hu, Deputy Chief of the Civil Division of the United States Attorney's for the Southern District of Texas, advised the undersigned that the Department of Justice concurs with our recommendation not to pursue a formal claim against Decedent's estate.

Accordingly, it is our opinion that a formal claim against Decedent's estate should not be filed.

Tina M. W~
Regional Chief Counsel

By:__________________
Scott T. M~

Assistant Regional Counsel

The United States government has a cause of action in federal courts against the personal representative of an estate where he, with notice of the government's claim, distributes the assets of the estate to inferior creditors. United States v. Vibradamp Corporation, 257 F.Supp. 931 (D.C.Cal. 1966). Nevertheless, where the government's claim is de minimus ($224) and the estate has been closed, further action to recover the overpayment would not be warranted.

(O~, Thelma - SSN ~ - CCIV - [Walters] - to ARC, Progs., Atl., 05/08/90)

You have requested our assistance in obtaining a refund of an overpayment of Supplemental-Security Income (SSI) benefits. The facts, as set forth in the file, are that Thelma O~ was overpaid SSI benefits in the amount of $421.40 for the period from April 1984 through July 1986. Before Ms. O~ became ineligible for SSI benefits in June 1986, $197.~0 of the overpayment was collected from her monthly payment checks. A balance of $224.00 is outstanding.

Ms. O~ died in July 1988. Attorney Robert F. S~, administrator of her estate, was notified of the. overpayment balance on August 30, 1989, with a copy sent to the Macon County (North Carolina) Clerk of Court. On September 22, 1989, Mr. S~ notified the Administration that as the government's claim was not presented Within six (6) months after notice to creditors was published in a paper of general circulation, it was rejected.

Telephone contact with Mr. S~ on April 18, 1990, revealed that the estate has been closed and that, following the payment of funeral bills, cost of administration, etc., the remaining $1,000 in assets was not sufficient to satisfy formal claims of creditors. The creditors were paid pro rata at approximately ten cents on the dollar.

Telephone contact with the Macon County Clerk of Court's office on April 18, 1990, verified that the estate was closed on January 17, 1990, and that, under North Carolina law, the last date to exhibit claims was February 12, 1989. The assets of the estate when opened were $10,000 in real property and $1,376 in personal property. When the estate was closed, $6,666.67 had been received in proceeds from the sale of the real property and the personal property continued to be valued at $1,376; total assets were $8,042.67. Disbursements of $7,247 included funeral and administration costs, medical and hospital expenses, attorney's fees, etc. The remaining assets were apparently distributed to creditors, as indicated by Mr. S~, on a pro rata basis.

The United States government has a cause of action in federal court against the personal representative of an estate where he, with notice of the government's claim, distributes the assets of the estate to inferior creditors. United States v. Vibradamp Corporation, 257 F.Supp. 931 (D.C.Cal. 1966). Nevertheless, it is the opinion of this office, that as the government's claim is de minimus, an outstanding overpayment balance of $224, and as the estate has been closed and the limited assets distributed, further action to recover the overpayment would not be cost- effective and, thus, would not be warranted.