The opinion expands on the policy for recovery of an overpayment from an executor of an estate of a deceased debtor.

Issue

Whether the Agency may recover an overpayment in the amount of $22,574.00 from Vincent V. H~, Jr. (Mr. H~), the personal representative of the estate of Mary G. H~ (Mrs. H~)._1

DISCUSSION

Short Answer

Mr. H~ received notice of the overpayment prior to final distribution of the estate assets on April 21, 2004. Therefore, he is in violation of the Federal Priority Statute, 31 U.S.C. § 3713(b), and could be found personally responsible for repaying the overpayment. Referral of this matter to the Department of Justice (DOJ) for enforced collection, however, is premature because Mr. H~ did not receive proper notice of the overpayment. Specifically, the initial notice does not comport with Agency policy regarding overpayment notices, which includes informing the legal representative of the right to reconsideration and waiver of recovery, as well providing detailed information explaining the overpayment calculation. Because the December 14, 2004 notice (see Tab 3) is the only notice Mr. H~ has received regarding the overpayment, and this notice is deficient, we recommend the Great Lakes Program Service Center (GLPSC) reissue a notice that includes the requisite information noted in the Program Operations Manual System (POMS).

FACTS

According to information you have provided, at the time of her death, the decendent, Mrs. H~, owed $22,574.00 to the Agency for an overpayment of benefits due to excess income. In a notice date December 14, 2003 (see Tab 3), the GLPSC informed Claire D~ (Ms. D~), the attorney for the estate, that "[b]ased on [Mrs. H~] receiving a government pension, her Social Security benefits should have been reduced. Therefore[,] an overpayment of $22,574.00 resulted" (id.)_2 The notice also informed Ms. D~ that according to Agency records, she was appointed as executor of the estate, and that pursuant to 31 U.S.C. § 3713, she would become personally liable for the overpayment if the estate's debt to the United States was not satisfied first and there were insufficient funds to pay all debts. The notice did not include, for example, "the monthly amount, if any, which should have been paid, . . . the months for which the different amount should have been paid, and the amount which was paid for those months." POMS § GN 02201.009B.1. (What Notice Includes). Nor did the notice mention the right to reconsideration of the overpayment determination or the right to request waiver of recovery. See id.

In a letter dated December 22, 2003 (see Tab 2), Ms. D~ informed the GLPSC that Mrs. H~ died on June 27, 2002, and that Mr. H~ was appointed personal representative of the estate on July 18, 2002. Ms. D~ also noted that following Mr. H~'s appointment as personal representative, a "Notice to Creditors" was published three times in a local newspaper, beginning August 1, 2002, and ending August 15, 2002, and the "[the Agency] did not file a claim within this time period . . ." (id.) Ms. D~ noted further that "the personal representative of the Estate of Mary G. H~ is denying the request by the Social Security Administration for repayment of $22,574.00," and that the estate would be closed 60 days from the date of her letter. Thus, despite the defective notice, Mr. H~, through the attorney for the estate, arguably requested reconsideration in December 2003, and the Agency has not responded to that request.

Statements from USBank, which are attached to the "Final Accounting-For Period From: July 24, 2002 To April 11, 2003" (see Tab 4) reflect that on December 31, 2002, the "customer," presumably, Mr. H~, withdrew $145,000 from a USBank account in the name of "The Estate of Mary H~." On March 26, 2004, approximately three months after he received notice of the overpayment through the attorney for the estate, Mr. H~, in his capacity as Trustee of the H~ Family Trust (the Trust), filed a "Receipt and Release" (see Tab 5), attesting that he had received cash in the amount of $146,362.98, and securities valued at $3,205.10 and $1,134.66 from himself as the personal representative of the estate. The "Receipt and Release" does not reflect the exact date Mr. H~ "contingently" distributed these assets to the Trust; however, as explained further below, the "final" distribution date, which in this case is April 21, 2004, is the relevant date for purpose of determining his liability for the overpayment under the Federal Priority Statute.

During a telephone conversation with Ms. D~ on April 19, 2002, she informed our office that Mr. H~ had distributed the assets to the Trust before he received notice of the overpayment from the Agency in December 2003. Ms. D~ also continued to assert that the Agency had missed the deadline to file a claim and had failed to prove the estate's liability for the overpayment. On April 21, 2004, Ms. D~ forwarded to our office a copy of the "Decree of Final Discharge" (see Tab 6) issued by the probate court, purportedly releasing and discharging Mr. H~ "from any and all liability arising in connection with the performance of [his] fiduciary's duties. . . ."

Legal Analysis

The Federal Priority Statute provides that, "A representative of a person or an estate . . . paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government." 31 U.S.C. § 3713(b). "The statute is to be 'liberally construed so as to effect the public purpose of securing debts owed to the United States.'" United States v. Idaho Falls Assocs. Ltd. P'ship, 81 F. Supp.2d 1033, 3713 (D. Idaho 1999) (quoting United States v. Whitney, 654 F.2d 607, 609 (9th Cir. 1981) (citing Bramwell v. United States Fid. & Guar. Co., 269 U.S. 483 (1926)); see also United States v. Moore, 423 U.S. 77, 81-86 (1975).

"'The basic elements of § 3713(b) and of its predecessor statutes is that (1) a fiduciary (2) make a distribution which (3) leaves the estate with insufficient funds to pay (4) a debt owing the United States where (5) the fiduciary had knowledge or notice of the debt due to the United States at a time when the estate had sufficient assets with which to satisfy the debt owing to the United States.'" United States v. Bartlett, 186 F. Supp.2d 875 (C.D. Ill. 2002) (citations omitted).

Mr. H~, as the personal representative for the estate, is a fiduciary. He distributed the assets of the estate to the H~ Family Trust, leaving the estate with insufficient funds to pay the overpayment. While Mr. H~ contends he had already distributed the estate assets to the Trust before he received notice of the overpayment, "[t]he distribution by [Mr. H~] prior to the closure of the estate was not a final distribution pursuant to a final decree, but a contingent distribution." Ferri v. Bowen, No. C-85-505-SPM, 1986 WL 373, at *2 (E.D. Wash. July 16, 1986) (noting that "[i]t is 'distribution' which is controlling"). The date Mr. H~ made a final distribution of the estate assets is the determining factor in this case with respect to his personal liability under the Federal Recovery Statute. See id. Therefore, even if Mr. H~ did distribute the assets of the estate into the Trust before he received notice in December 2003, he received notice of the overpayment prior to the closure of the estate in April 2004 and is in violation of the Federal Priority Statute. See id.

Mr. H~, through the attorney for the estate, also continues to dispute the Agency's right to recover the overpayment from the estate assets on the basis that the Agency missed the deadline to file a claim. However, "[a]s it undisputed that state probate nonclaim statutes do not bar claims of the federal government, the status of the probate proceedings cannot be deemed controlling." Id. (citing United States v. Summerlin, 310 U.S. 414 (1940)).

In construing the predecessor statute to 31 U.S.C. § 3713(b),[ ] the courts have uniformly held a personal representative liable who, having actual notice of the debt due the Government, distributed the estate pursuant to a decree of distribution without first paying the debt due the Government even though the Government had not submitted a claim in the probate proceedings.

United States v. Boots, 675 F. Supp. 550, 551 (E.D. Mo. 1987) (citations omitted). Mr. H~ has "the burden of proving the statute does not apply" to him. Ferri, 1986 WL 373, *2 (citing United States v. Cole, 733 F.2d 651, 654 (9th Cir. 1984)).

Mr. H~ also continues to dispute the validity of the overpayment, and therefore, may contest whether the Agency actually had a "claim," i.e., whether the estate was indebted to the Agency within the meaning of the Federal Priority Statute before the assets were finally distributed ._3 "The terms of the . . . statute are to be construed liberally so as not to frustrate its purpose in securing sufficient revenue for the payments of public debts." United States v. Moriarty, 8 F.3d 329 (6th Cir. 1993) (holding that "although the United States may be precluded by the applicable statute of limitations from brining an action for money damages, it continues to have a 'right to payment' against the debtor in this case and thus may enforce that right in other ways") (citing Bramwell v. United States Fidelity & Guar. Co., 269 U.S. 482, 487 (1926); United States v. State Bank of N.C., 31 U.S. (6 Pet.) 29, 34, 8 L.Ed. 390 (1832)). Furthermore, "[i]n interpreting the term 'claim' under the federal priority statute, we look for guidance to the Bankruptcy Code." Moriarty, 8 F.3d at 334 (citing United States v. Moore, 423 U.S. 77, 84 (1975)). "In the Bankruptcy Code, 'claim' is defined broadly as a 'right to payment, whether or not such right is reduced to judgment, . . . contingent, . . . [or] disputed. . . ." Moriarity, 8 F.3d at 334 (emphasis in original) (citing 11 U.S. C. § 101(5)). Here, we believe the estate's debt arose on or about September 27, 2002, the date the Agency discovered and manually posted Mrs. H~'s overpayment in its computer system. "Once a determination of overpayment is made, the overpaid amount is a debt owed to the United States Government." POMS GN 02201.001._4 See Memorandum, Florida - Recovery of Overpayment Incurred Subsequent to Chapter 7 Bankruptcy, CC IV (G~ & A~) to Assistant Regional Commissioner, Program Operations and Systems (May 5, 1993) (noting "[t]he debt to SSA is not created until [the beneficiary] reports the amount of her 1990 earnings or until as here, an investigation reveals that there were excess earnings for 1990).

Thus, we believe that Mr. H~ is in violation of the Federal Recovery Statute and, therefore, liable in his personal capacity as the representative of the estate for the $22,574 overpayment. However, we caution that DOJ may be reluctant to initiate a recovery action_5 against Mr. H~ in his capacity as personal representative if the Agency cannot demonstrate he received proper notice of the overpayment.

The December 2003 notice that Mr. H~ received through the attorney for the estate (see Tab 3) does not comport with Agency policy. POMS GS 02201.009 (Notification of Overpayment) requires that written notice be sent and requires that the notice include the "[o]verpayment amount and how and when it occurred (i.e., the overpaid amount, the monthly amount, if any, which should have been paid, why the different amount was due, the months for which the different amount should have been paid, and the amount which was paid for those months)." The December 2003 notice simply states the following: "Based on [Mary G. H~] receiving a government pension, her Social Security benefits should have been reduced. Therefore[,] an overpayment of $22,574.00 resulted" (see Tab 3). Additionally, the notice must inform the claimant of the "[r]ight to reconsideration of the overpayment determination," as well as the "[r]ight to request waiver of recovery and the automatic scheduling of a personal conference if a request for waiver cannot be approved." Id. § GN 02201.009B.1. The December 2003 notice does not mention reconsideration or waiver.

POMS GN 02215.055, which specifically pertains to estates administered by a legal representative, states that "[a] legal representative must be notified of how and when an overpayment was made and the estate's liability for repayment." Moreover, these procedures also require the Agency to inform the legal representative of "[t]he right to reconsideration and waiver" and "[t]reat any protest/appeal of the estate's liability for repayment . . . as a request for reconsideration of that issue." Id. GN 02215.055 B.1.a.& e. Again, the notice Mr. H~ received through the attorney for the estate in December 2003 does not meet these requirements. "If notification is deficient (e.g., notice is not sent, . . . content is inadequate), a new notice must be sent." Id. § GN 02201.009B.8._6 Furthermore, as noted above, the Agency has not responded to Mr. H~'s request for reconsideration.

Thus, while the December 2003 notice was sufficient to alert Mr. H~ that the Agency has a claim against the estate,_7 this notice is insufficient for the purpose of establishing the estate's liability for the overpayment because it does not contain the requisite information.

CONCLUSION

For the reasons discussed above, we believe Mr. H~ could be found liable in his personal capacity under the Federal Priority Statute for the overpayment because he received sufficient notice of the Agency's claim prior to final distribution of the estate assets._8 However, we do not believe DOJ will institute recovery action if the Agency cannot prove the fact and amount of the debt, which will require to Agency to show that that it followed its internal policies with regards to notice of the overpayment._9 Therefore, we recommend the Agency reissue a notice to Mr. H~ in his capacity as personal representative that contains the requisite information noted in the POMS.

Deana R. E~-L~

Regional Chief Counsel, Region VIII

By ___________________________

Yvette G. K~

Assistant Regional Counsel

_1 On April 13, 2004, you submitted a "Notice of Hearing on Petition for Final Settlement and Distribution (Non-Appearance)" (see Tab 1), scheduled for April 20, 2004, to the Office of the General Counsel, Region V, in Chicago, Illinois, which referred the matter to our office because a Colorado State Court has jurisdiction over the probate proceedings. After consultation with the Colorado U.S. Attorney's Office, we did not send an attorney to the non-appearance hearing. We determined that since the assets had been "contingently" distributed, it was unlikely the court would delay the final settlement and distribution of the estate, and, if warranted, the Agency could refer this matter to the Department of Justice (DOJ) for a civil suit to recover the overpayment from Mr. H~ at the conclusion of the administrative proceedings.

_2 The GLPSC sent a similar notice to the probate court.

_3 Sections (a) and (b) of 31 U.S.C. § 3713 provide, in part, as follows:

(a)(1) A claim of the United States Government shall be paid first when-(b) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor.

_4 In this context, we believe "determination" is synonymous with "discovered," as opposed to the term of art, "initial determination," which requires written notice. See POMS GN 02201.009 ("When the debt is discovered, the fact, amount and liability for repayment must be communicated as soon as possible. If the overpayment is discovered because of an oral communication (telephone call or interview), the liability for repayment is communicated during the first oral contact. Written notice is always sent.")

_5 POMS § GN 02215.170.A (Handling of Overpayment Claims for Referral to DOJ) notes that "[t]he ARC, POS is responsible for either reporting or not reporting an outstanding debt to the U.S. Department of Justice (DOJ) Central Intake Facility for possible civil suit." Referrals must be submitted to the Department of Justice on a "Certificate of Indebtedness" and a Claims Collection Litigation Report pursuant to the instructions set forth in the POMS. See id. § GN 02215.170B.4.

_6 "Whenever there is a delay of more than 1 year between the time overpayment occurs and the time a determination is made (i.e., notice sent), a complete explanation and evidence to support the delay must be provided by the PC when the debt claim is referred to DOJ." POMS§ GN 02215.150.B.2.

_7 "The knowledge requirement of ... 31 U.S.C. § 3713 may be satisfied by either actual knowledge of the liability or notice of such facts as would put a reasonably prudent person on inquiry as to the existence of the unpaid claim of the United States. To be chargeable with knowledge of such a debt, the executor must be in possession of such facts as to put him on inquiry." Bartlett, 186 F. Supp. 2d at 886-87.

_8 This opinion does not address recovery actions that could be taken against the beneficiaries (distributes) of the trust. "When an overpaid person (e.g., beneficiary or representative payee) dies, the person's estate becomes liable. If the estate is closed, the distributees or legatees are liable to the extent of the proceeds of the estate (or property attributable to such proceeds) which are in his/her possession when notified of the overpayment." POMS 02205.001.B.2.

_9 To ensure that civil suit is not barred, the complaint must be filed within:

a. Six years after the right of action accrues (i.e., within 6 years after the time an overpayment determination has been made); or

b. One year after a final decision has been rendered in an administrative proceeding (i.e., reconsideration, hearing, and/or review by the Appeals Council), whichever is later.

POMS § GN 02215.159B.2.

This opinion states that when a surviving spouse petitions for a year's support from an estate, any property set aside cannot be attached to satisfy debts owed to creditors. If the set aside court covers the full estate, there are no assets remaining for collection of debts. If the court awards less than the entire estate, any assets remaining are subject to collection.

Question Presented:

Whether the Social Security Administration can collect against an estate in Georgia when the surviving spouse petitions for a year's support?

Short Answer:

Any property properly, real or personal, set aside for a year's support cannot be attached to satisfy the debts owed to any creditor. The language of the petition for an award of a year's support and the order actually awarding a year's support will determine whether any property remains in the estate from which the Social Security Administration might attempt to collect amounts owed as mistaken payments or overpayments.

Discussion:

You requested information regarding the provision in Georgia law, which allows a surviving spouse and surviving minor children to apply for a "year's support" outside the provisions of the will. See O.C.G.A. § 53-3-1(c). Generally, this provision allows for a surviving spouse and surviving minor children to petition to court to set aside all or part of the property in the estate to be used for their support and maintenance for the period of twelve months from the date of the decedent's death. Id. The intent of this provision is to provide maintenance to the widow and children until such time as they can collect their rightful portion of the estate either as heirs or by will. See National City Bank of Rome v. Welch, 186 S.E. 596 (Ga. App. 1936). Such a year's support, if approved, pulls those itemized assets out of the estate, and takes preference over other debts. Id. Any property set aside to support the surviving spouse and minor children as a year's support is superior to any other debts of the estate. See O.C.G.A. § 53-3-1. "Where the appraisers have set aside a year's support to a widow, . . . irrespective of whether the burden of proof rests on the claimant, that is, the widow, or on the administrator, the return of the appraisers makes a prima facie case for the widow . . . ." Wilson v. Wilson, 189 S.E. 71 (Ga. App. 1936) (a challenge to the amount provided the widow, on the basis that it exceeded her support needs, was denied on the basis of insufficient evidence to rebut the presumption that an appraisal allowing for an award of the entire estate was correct). Furthermore, when a year's support is set aside out of homestead property, the homestead estate becomes extinguished and is merged into the greater estate for the benefit of the wife and children. See Bardwell and Co. v. Edwards, 45 S.E. 40 (Ga. 1903).

Whether the Social Security Administration can collect from the estate in light of an award of a year's support depends upon several factors. First, should the surviving spouse petition for, and the court award, less than the full estate as a year's support, the excess assets not awarded as a year's support will continue to pass through the estate either by intestacy or by will. Accordingly, such excess assets may become subject to attachment to satisfy the debts of the decedent.

However, when the entire estate becomes set aside as a years support, such assets are not subject to any attachment and take precedence over all other debts. See O.C.G.A. § 53-3-1. Once the order becomes final, a court may not modify that order at the request of any creditor. See Raper v. Smith, 116 S.E.2d 554, 555 (Ga. 1060) (by the time the order is entered, it is too late to attack that order except for fraud or lack of jurisdiction over the person or subject matter jurisdiction). Therefore, if any creditor intends to challenge the petition to set-aside the requested assets as a year's support, this challenge must be filed before the court grants the petition.[1][1] See Holamon v. Jenkins, 177 S.E. 262 (Ga. App. 1934); Reynolds v. Norvell, 59 S.E. 299, 301 (Ga. 1907). Given a proper and timely challenge, it appears the court may award less than the amount claimed as a year's support.[2][2] See Burkett v. Estate of Burkett, 548 S.E.2d 628 (Ga. App. 2001) (court awarded a life estate in the homestead and full interest in and to the household furnishings, goods, and appliances, but did not agree to award the entire estate as a year's support in light of a challenge by an adult child of the decedent who timely objected). In such instances, excess assets would remain in the estate, which could become subject to attachment by creditors.

There is always a question of whether the Commissioner should subject herself to the jurisdiction of the State probate. If the Commissioner were to contest the amount requested by a surviving spouse/children to become set aside as a year's support, the Commissioner may voluntarily become subject to the State court's jurisdiction. If the Commissioner's objections become overruled, it remains unclear what effect the State court's order would have on the Commissioner. Such a State court order may hamper recovery from the widow/widower on this decedent's earnings record, when such benefits become payable at a later date.

That said, the question remains as to the status of the Social Security Administration, when a surviving spouse petitions for a year's support and the court grants that petition. We suggest the following guidelines for evaluating such petitions in Georgia:

1. Request the clerk of probate court send us the petition (we should already have the petition since the petitioner must notify all creditors of his/her claim for a year's support). Determine first the extent of property claimed as needed for the year's support. That is, does the petition indicate "all property," all real and personal property, etc. If the petitioner asks for less than the full estate, then assets remain in the estate from which our claim could become satisfied. In such circumstances, we could continue our ordinary collection efforts.

2. Look to the petition's description of the assets claimed for a year's support, either in cases when the entire estate is claimed or even when less than the full estate is claimed. If the assets claimed are small or if the amount claimed seem reasonable or even marginally reasonable, we would probably not contest them becoming set aside for a year's support. However, if the assets claimed seem grossly excessive (i.e., multiple houses, commercial realty, a large amount of money, stocks, bonds, or other liquid assets, significant ownership in family-held corporation(s), etc.), refer to OGC to determine whether we should contest the amount claimed as excessive for a year's support. This referral to OGC should be made as soon as possible and certainly before the date the court set in its notice as the date certain that it will hear the matter.

3. Look to the court's order regarding the year's support. Again, should the petitioner request the entire estate to be set aside and the court awards the full amount claimed, there are no assets remaining from which the debt can be paid. However, if the petitioner claimed the full estate but the court awarded less than the entire estate, then assets remain in the estate from which our claim could become satisfied. In such circumstances, we could continue our ordinary collection efforts.

Billy W. B~

Following the above recommendations, Ms. Clara B~ petitioned that the court set-aside all of Mr. B~'s property as year's support for her support and maintenance. She estimated such property at $10,000. This appears reasonable and seems to be much less than an amount needed to support herself for a year. The court agreed and granted her petition on December 2, 2002. Therefore, even if this petition had been brought to our attention before the court granted it, we would not have objected since the amount claimed is so small. Also, since we did not timely object, we have no recourse at the present time. Finally, since the court awarded the entire estate assets for a year's support of Ms. B~, there are no assets remaining in the estate from which we might directly recover the debt.

Barron J. O~

Again following the above recommendations, Ms. Patsy G. O~ petitioned that the court set-aside all of Mr. O~'s property as year's support for her support and maintenance. The attachment indicates she claimed (1) property described, which is a land parcel with improvements; and (2) all other real and personal property (attachment to court order). While we do not have an estimate of the value of this property, the court granted Ms. O~'s petition by order dated January 7, 2003. Therefore, the court found the assets claimed for a year's support in the petition as reasonable. As above, even if this petition had been brought to our attention before the court granted it, there is no evidence that we would have any reason to object. Also, since we did not timely object, we have no recourse at the present time. Finally, since the court awarded the entire estate assets for a year's support of Ms. O~, there are no assets remaining in the estate from which we might directly recover the debt.

[1][1] When no objections are filed, an order granting a year's support is binding on all interested parties who were properly notified of the petition. See Goldberg v. National Bank of Walton County, 299 S.E.2d 163, 164 (Ga. App. 1983) (citing Raper v. Smith, 116 S.E.2d 554 (Ga. 1960)). We are unsure whether any accounting is performed if no one objects, since it appears that the court "shall" enter an order granting a petition if no objection is filed. See O.C.G.A. § 53-3-7(a).

[2][2] The statute indicates the standards the court uses to weigh the petition versus an objection(s), and for determining the amount needed for a year's support, which equitably weigh the needs of the surviving spouse against the rights of the creditors, see O.C.G.A. § 53-3-7(b)-(c); and the petitioner has the burden of proving the amount claimed is necessary. See O.C.G.A. § 53-3-7. Also, since the probate court must post notice once a week for four weeks after a petition for year's support is filed, in which the court indicates the date certain by which objections should be filed, see O.C.G.A. § 53-3-6(b), it stands that any objection should be filed within that four week period or the time prescribed by the court in its notice.