SI DEN02220.045 Affidavit In Support Of Claims Against Estate Of Deceased Native American Indian
See SI 02220.045
The Regional Chief Counsel's office has prepared a form affidavit to be used to submit
a claim to recover an overpayment from the Bureau of Indian Affairs (BIA) when they
administer the estate of a deceased Indian. The Administration has succeeded in obtaining
payment from an estate by the use of this form. The BIA has a 60-day time frame for
filing claims against the estates of deceased Indians, and claims can be denied for
failure to file the claim timely.
Exhibit 1 provides a form affidavit to be used in filing a claim with the BIA. The
language in the parentheses states the legal basis for the claim and must always be
included. When prepared by the field office (FO), the affidavit should be a simple
narrative. Explain in paragraph 1 how the overpayment occurred, notice that was given,
if any, determination as to fault, if any, and all other relevant facts pertaining
tot he overpayment. Of course, the amount, name of the FO manager, and city and State
where the FO is located pertain to the actual claim involved.
The affidavit must be notarized.
As a result of filing, the BIA will notify your office of the date of the hearing.
Attendance is not required. You may be notified that assets are inadequate to satisfy
SSA's claim. The BIA is limited to assets administered by the BIA (e.g., trust lands,
lease income, etc.). In that case, you should determine whether or not a personal
estate also exists.
If a claim is denied, request a copy of the order of distribution of assets of the
estate. This will assist you in deciding whether to attempt collection from the distributees
of the estate.
Exhibit 1 - Affidavit
(IN THE MATTER OF THE ESTATE OF)
John Little Doe
(STATE OF MONTANA) :
(COUNTY OF CLEAR CREEK) :
(SS AFFIDAVIT IN SUPPORT OF CLAIM)
(Prior to his death, the decedent was the recipient of Supplemental Security Income
in the amount of) $75.00 a month (under the provisions of Title XVI of the Social
Security Act, 42 USCA 1381, et seq. As a result of excess income, he was not entitled
to any payments made to him for the) three (3) months of October 1977, totaling $225.00.
(The excess income consisted of) lease payments of $800.00 which was received in November
1977, which brought his income above the maximal amount permitted for eligibility
for those) three (3) months. (Prior to his death, the decedent admitted in writing
the receipt of the lease payments.) *(These payments are not exempt from consideration
as income or resources for purposes of the Social Security Act by Public Law 94-114
(1975), which grants such an exemption with respect to income and resources derived
from certain submarginal land conveyed to 17 Indian tribes because the tribe with
which the decedent was a member, Three Affiliated Tribes, Fort Berthold Reservation,
New Town, North Dakota, is not among the 17 tribes listed in the law.)**
(The deceased was, therefore, "overpaid" in the sum of) $225.00 (which represents
a debt due the United States of America. Said indebtedness is chargeable against the
estate of the decedent which was unjustly enriched by the overpayment of monthly payments
under Title XVI of the Social Security Act, supra. Debts owing to the United States
of America from estates of deceased debtors are accorded priority over claims of all
other creditors. 31 USCA 191-192.
(The described claim is justly due and owing to the Social Security Administration
of the United States of America, Department of Health and Human Services, and there
are no offsets to that claim.) (Wherefore, it is respectfully submitted that the described
claim be allowed and that repayment of the sum of) $225.00 (be made by check drawn
payable to the Treasurer of the United States, Social Security Administration, Claim
* Insert only if applicable.
** This section applies if overpayment caused by lease payments (insert correct name
John Smith, (being duly sworn, deposes and says that he is manager of the field office,
Social Security Administration, Clear Creek, Montana, and as such, is authorized to
execute, on behalf of the Social Security Administration, a creditor's claim in a
manner consistent with Federal law for the purpose of effectuating recovery from the
estate of a deceased debtor to whom an incorrect payment of Supplemental Security
Income has been made and that he has knowledge of the foregoing claim and that the
same is just and unpaid after allowing all just credits.)
UNITED STATES OF AMERICA
Manager, Field Office
Social Security Administration
Clear Creek, Montana
Subscribed and sworn to
before me this _____ day
of ____________ 198_.
My Commission Expires on ________________________.
THE PARENTHESES IN THE BODY OF THE AFFIDAVIT ARE TO SET OFF REQUIRED LANGUAGE. DO
NOT INCLUDE THE PARENTHESES IN ACTUAL AFFIDAVITS.