TN 3 (08-89)
GN 02315.015 Foreign Jurisdiction - Small Estates
A. Operating Policy
Precedent opinions have been collected on what constitutes a “legal representative” in various foreign countries. The following information is based on some of these precedents and may be used as a guide only. Do not attempt to adjudicate a claim for an underpayment based on this general information. Use only those precedent opinions contained in their entirety in the INTPSC law library to determine what constitutes a legal representative in a foreign country. Where there is no precedent and one is required, submit the case to the proper office for a legal opinion (GN 01010.830).
1. ACCEPTANCE OF LETERS OF ADMINISTRATION
Countries With Laws Similar To The U.S. - Accept at face value letters of administration or similar documents, when issued by the court of a country whose inheritance laws are similar to those of the States of the United States. Such countries include:
Not Always Necessary - Letters of appointment may not always be necessary. Absent evidence to the contrary, letters of appointment issued in these countries by a competent court may be accepted as proof that the person named in the letters qualifies as legal representative.
Other Countries - If there is no precedent and the letters of appointment are issued in a country other than those listed above, submit the case to the Office of International Policy, International Program Policy and Totalization Staff (IPPTS).
2. MULTIPLE HEIRS
No Executor - When there is no executor or administrator and more than one heir who qualifies as legal representative of the estate, assume all heirs share equally in the estate if the evidence of heirship does not specify how the heirs are to share. If shares are specified, prorate accordingly.
EXCEPTION: In some countries, certain heirs are given certain specific property. One or more heirs may be allotted only real property (land and buildings) while others are awarded all other property. In such situations there is doubt whether the heirs receiving only real property need be considered. Refer such cases to IPPTS.
One heir acts for all heirs - If one heir purports to act on behalf of all heirs, the question as to whether he/she can receive the entire underpayment as legal representative of the estate depends upon whether he/she can give “good acquittance” for the entire estate. That depends upon the laws of the country and the facts in the case. If there is no precedent available, submit the question through channels (GN 01010.830).
3. LEGAL REPRESENTATIVES IN IRELAND
Irish law - Under the laws and customs of Ireland, the evidence required to establish a person as the legal representative of an estate (and to provide SSA with good acquittance so that SSA may pay the underpayment) is a grant to him/her of either:
probate of the deceased person's will, or
letters of administration (court appointment to manage and distribute the estate when a person dies intestate; i.e, without leaving a will).
No Will - If the claimant has been named executor(trix) in a will which will not be probated (usually because the cost of doing so would exceed the assets of the estate), he/she cannot give SSA “good acquittance”and must be denied the underpayment. The will must be probated.
NOTE:An individual can obtain a probate without retaining a lawyer by making a personal application to the Probate Office, Fourt Courts, Dublin 7, Ireland. This procedure is very economical because there are no lawyer fees. When an individual applying for the underpayment alleges that probate will not be obtained because the deceased had limited or no assets, suggest that he/she apply at the probate office.
4. LEGAL REPRESENTATIVES IN ITALY
Italian Law - Under Italian law a person who is entitled to inherit from an estate and who accepted the inheritance
by simple or outright acceptance, or
by acceptance with benefit of inventory may be considered a “legal representative” for purposes of disposing of an underpayment. It is immaterial whether the decedent died testate or intestate. In Italy, heirs succeed directly to estates and the American concept of “executor” or “administrator” is unknown.
Type of Evidence - The type of evidence required to prove that an individual is a “legal representative” of an estate will vary depending upon how he/she accepted his/her inheritance from the estate.
If he/she accepted the estate with benefit of inventory (in which case his/her liability is limited to the extent of the inheritance received), the evidence required is a notarized or certified copy of an affidavit on file in the appropriate Italian court showing the heir and that he /she has accepted the estate.
If the acceptance was simple or outright (by which the heir becomes personally liable for all debts of the decedent), public filing is not necessary. Instead, the individual may submit a statement (a “Scrittura privata con sottoscrizione autenticata”, which must be signed in front of a notary or public official who authenticates the signature) to the effect that he/she is the heir of the estate in question, and has accepted the inheritance.
5. PROBATE COURTS AS LEGAL REPRESENTATIVES IN SCANDINAVIA
In Denmark, Norway, and Sweden, the probate courts often act as administrators of estates. Their authority to so act is found in the laws of their country, and they cannot produce letters of administration or similar documents.
A statement by the court that it is administering the estate is sufficient evidence of authority.
The authority to so act is vested in the court rather than in the indivdiual assigned to the court. A reassignment of judges does not invalidate a claim
Checks should be issued to the court rather than to the individual assigned to the court.
EXAMPLE:Olso Probate Court, administrator of estate of Hans Hansen.
6. LEGAL REPRESENTATIVE OF ESTATE IN THE FEDERAL REPUBLIC OF GERMANY
General - Under the law of the Federal Republic of Germany, upon the death of an individual (whether testate or intestate) the full right of his/her property and liabilities passes immediately and directly to his/ her heir(s) (whether or not relatives of the deceased) without any administration of the estate. If there is more than one heir, each has authority to administer and dispose of the estate. An executor or administrator of the estate is usually not required.
Claimant is (or will be) court-appointed administrator- If the claimant is, or will be appointed administrator of the estate by a court of the Federal Republic of Germany, obtain evidence of this appointment. If this is not available, obtain consent statement (see c. below) from all the heirs.
Claimant is not court-appointed administrator of the estate -
If the claimant is not a court-appointed administrator of the estate and it appears none will be appointed, ascertain who are the heirs to the deceased's estate. All the heirs must be identified without regard to their degree of relationship or nonrelationship to the deceased.
Information about the heirs to the estate may be obtained on an SSA-717, Statement of Person Requesting Payment on Behalf of Estate or on another writing (such as an overprinted SSA-795, Statement of Claimant or Other Person) containing the same information. Absent evidence to the contrary, assume that the claimant furnished accurate and complete information.
Claimant is the sole heir - When the heirs to the estate have been identified, and the claimant is the only heir to the deceased's estate, make payment to him/her without further development.
Claimant is not the sole heir - SSA cannot assume the responsibility of dividing the underpayment among those legally entitled to share the estate. Any heir, regardless of whether he/she was (or was not) related to the deceased, may file for the underpayment on behalf of the estate.
If the claimant is not the only heir to the estate, consent statements must be obtained from the other heirs (regardless of their relationship or nonrelationship to the deceased) showing that each agrees to having the amount due the estate paid to the claimant.
This consent can be obtained on a Form SSA-718, Consent by Relative for Payment to Individual on Behalf of Estate, or on any other writing containing the necessary consent.
If the heir whose consent is required is an incompetent or minor, the consent of the legal guardian or other person who assumes responsibility for him/her is required. However, if the minor is at least age 14, his/her consent may be accepted in the absence of a legal guardian or other person who has assumed responsibility for him/her.
Payment cannot be madeto any claimant if any heir, whose consent is required (or would be required), objects to him/her. Consent is not required from any heir if:
He/she is not readily available; that is, his/her address is not known and cannot be easily learned, he/she cannot be reached by mail except after undue delay, he/she resides in a barred country, etc., or
The amount due the estate, divided by the number of heirs (including the claimant), is $15 or less.
Document the file to note why any consent is not obtained.