TN 6 (05-10)

PR 08305.007 Colorado

A. PR 10-085 V~ Good Acquittance/Trust Account – REPLY NH Kim A~ (xxx-xx-~)

DATE: April 9, 2010

1. SYLLABUS

Under Colorado Revised Statutes, section 15-21-1201, after 10 days have elapsed after the death, any person indebted to the decedent shall make payment of the indebtedness to a person claiming to be the successor upon the presentation of an affidavit by (or on behalf of) the successor stating:

a. The value of a decedent's estate, less liens and encumbrances, does not exceed $50,000;

b. Each claiming successor is entitled to payment. The person making payment to the affiant is discharged and released without seeing to the application of the payment or inquiring into the truth of any statement in the affidavit. Failure of a person owing money to the decedent to pay it to the affiant may be compelled by judicial process. The affiant must account to the personal representative of the estate for assets transferred to him or her as the successor of the decedent. Thus, SSA receives good acquittance for underpayments due a decedent under titles II and XVIII of the Social Security Act, and the Federal Coal Mine Health and Safety Act, paid to such an affiant.

2. OPINION

QUESTION PRESENTED

You requested an opinion as to whether Michelle V~:

• Can receive an underpayment owed to her deceased sister, Kim A~, based on her status as trustee of the Kim R. A~ Supplemental Needs Trust;

• Can receive the underpayment by being appointed as an executor of Ms. A~’s estate;

• Can give the agency “good acquittance” upon receipt of an underpayment in accordance with POMS GN 02301.040 (Good Acquittance); and

• Can receive the underpayment under Colorado’s small estate statute in accordance with POMS GN 02315.042 (State Jurisdiction – Small Estates).

SHORT ANSWER

Under Colorado intestacy law, Ms. V~ can give the agency “good acquittance” if she is court-appointed as a personal representative of Ms. A~’s estate under the state’s informal appointment proceeding. She must provide proof of her court-appointed personal representative status, including proof of the appointment, certification of the appointment, and an application and supporting documents. The agency may then pay her the underpayment.

BACKGROUND

According to the information you provided, Ms. A~ died on December 8, 2009, and was survived only by Ms. V~, her sister. You advised that no one has been appointed as a legal representative of Ms. A~’s estate. At the time of her death, she was domiciled in Colorado. The agency determined that Ms. A~ was underpaid $99,228.67.

In April 2008, Ms. A~’s mother created an irrevocable supplemental needs trust. She named Ms. A~ as the beneficiary and Ms. V~ as the trustee. Pursuant to Article I-6.00 of the trust, upon Ms. A~’s death, any remaining balance in the trust shall be distributed to Ms. V~ by right of representation.

DISCUSSION

A. To be entitled to the underpayment under Federal law, Ms. V~ must be able to give “good acquittance” to the agency.

Section 204(d) of the Social Security Act (“Act”), 42 U.S.C. § 404(d), specifies the order of distribution for payment of the amount due to an individual who dies before the agency completes payment to that individual. See also 20 C.F.R. § 404.503(b) (2009) (discussing the statutory order of priority); Program Operations Manual System (“POMS”) GN 02301.030A (same). Where, as here, the individual is not survived by a qualified spouse, children, or parents, the underpayment must be made to the deceased individual’s legal representative. See 42 U.S.C. § 404(d)(7); 20 C.F.R. § 404.503(b)(7); POMS GN 02301.030A(g). The term “legal representative,” for the purpose of qualifying to receive an underpayment, generally means the administrator or executor of the estate of the deceased. 20 C.F.R. § 404.503(d); see also POMS GN 02301.030A(g) (when the underpaid beneficiary is the deceased, if there is no surviving spouse, child, or parent, then the underpayment should be made to the “legal representative” of the deceased person’s estate). Your memo indicates that no one has been designated as a legal representative of Ms. A~’s estate.

The regulations provide that an individual acting on behalf of an unadministered estate, including a person who qualifies under a state’s small estate statute or a person who has authority, under applicable law, to collect the assets of the estate of the deceased person, may also qualify as a legal representative provided that person can give the agency good acquittance. 20 C.F.R. §§ 404.503(d)(1) and (4); POMS GN 02301.035B(1). As defined in the regulations, a person is considered to give the agency good acquittance when payment to that person releases the agency from further liability for such payment. 20 C.F.R. § 404.503(e). See also POMS GN 02301.035C (describing the type of document that must be provided depending on the method used to qualify as a legal representative).

B. Under Colorado law, Ms. V~ can give good acquittance by becoming the administrator or executor of Ms. A~’s estate.

Colorado’s Probate Code describes the procedures for informal probate or appointment proceedings. Colo. Rev. Stat. Ann. (“C.R.S.A.”) Title 15, Art. 12, Pt. 3 (2009). Under the Code, a “personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. C.R.S.A. § 15-10-201(39). A personal representative may be appointed by order of the court or registrar under an informal appointment proceeding. C.R.S.A. § 15-12-103. One of the requirements to be appointed as a personal representative is a statement of interest. C.R.S.A. § 15-12-301. Because Ms. V~ is entitled to Ms. A~’s property by intestate succession,1_/ she is a person with an interest. Assuming she meets the other application requirements,2_/ Ms. V~ could apply to be appointed as personal representative of Ms. A~’s estate under informal proceedings. C.R.S.A. §§ 15-12-301(2) and (5).

Acceptable proof of Ms. V~’s status as a court-appointed legal representative includes proof of the appointment, certification of the appointment, and an application and support documents. See POMS GN 02301.035C (1) – (4). Proof of the appointment may include a certified copy of letters of appointment, a “short” certificate, a certified copy of the order of appointment, or any official document issued by the clerk or other proper official of the appointing court. See POMS GN 02301.035C(2). Certifications of the appointment made more than a year before filing and copies of certifications made by other than the proper court officer are not acceptable. If the representative has been appointed more than a year before filing, the certification must show that the appointment is still in effect. For appointments made less than a year before filing, if circumstances indicate that the appointment may have ended, the certification must show that the appointment is in effect. See POMS GN 02301.035C(3). Finally, an application and support documents must contain the representative’s full title, a copy of the document needed to place the estate within her jurisdiction certified by the proper court official, and any other evidence of her authority. See POMS GN 02301.035C(4).

C. Under Colorado law, Ms. V~ does not have the authority to collect the assets of Ms. A~’s estate based on her status as trustee of her deceased sister’s supplemental needs trust.

The regulations provide that the legal representative may be a person who has the authority, under applicable law, to collect the assets of the estate of the deceased individual. 20 C.F.R. § 404.503(d)(4). Colorado law allows payment to a trustee without being a court-appointed personal representative if certain criteria are met. See C.R.S.A. § 15-15-101 (nonprobate transfer on death). The law provides that money owed to a decedent before death must be paid after the decedent’s death to a person whom the decedent designates in a written instrument or in a separate writing, including a will, executed before or at the same time as the instrument. C.R.S.A. § 15-15-101(1)(a). A written instrument includes a trust. Id.

Here, there is a supplemental needs trust, created by Ms. A~’s mother, for the benefit of Ms. A~ during her lifetime. Ms. V~ was the named trustee. Further, upon Ms. A~’s death, any remaining trust property is to be distributed to Ms. V~. Nonetheless, this trust does not allow Ms. V~ to collect the underpayment as a trustee or beneficiary for the following reasons. The supplemental needs trust does not contain a provision specifically authorizing the transfer of the underpayment (or any other debts owed) to Ms. V~ upon her sister’s death. Thus, the trust does not qualify as a written instrument that would allow nonprobate transfer on death, as described above. As trustee, Ms. V~ only had control of those assets which were included in the trust. The underpayment was not a part of the trust property which Ms. V~ administered. Therefore, Ms. V~ does not have the authority to collect the assets of her deceased sister’s estate and the underpayment may not be paid to Ms. V~ in her capacity as trustee. Similarly, as a beneficiary of the trust, Ms. V~ is only entitled to any remaining trust property upon her sister’s death. Because the underpayment was not a part of the trust property, Ms. V~ is not entitled to the underpayment in her capacity as a beneficiary of the trust.

D. Under Colorado law, Ms. V~ does not qualify as a legal representative under the state’s small estates statute.

The regulations also provide that the legal representative may be a person who qualifies under a small estate statute. 20 C.F.R. § 404.503(d)(1). Colorado’s small estate statute provides that a successor of a decedent may collect a debt owed to the decedent by presenting an affidavit to the debtor. C.R.S.A. § 15-12-1201(1). The affidavit must contain the following statements:

• The value of the estate does not exceed $50,000;

• Ten days have elapsed since the death of the decedent;

• No application or petition for the appointment of a personal representative is pending or has been granted; and

• The claiming successor is entitled to payment or delivery of the property.

Id. See also POMS GN 02315.042 (good acquittance for payment under Colorado’s small estate statute); POMS GN 02301.035C(1)(b) (documentation required to show qualification as a legal representative under a small estate statute).

As noted above, under Colorado’s probate code, Ms. V~ appears to be a successor of the decedent after a surviving spouse, children, or parents of Ms. A~. C.R.S.A. § 15-11-103(4). However, the value of Ms. A~’s estate exceeds $50,000. A debt owed to a decedent is an asset of the estate. See 42 U.S.C. § 404(d)(7); see also Hoops’ Family Estate Planning Guide § 2:4 (4th ed. 1995). Because the overpayment is $99,228.67, Ms. V~ will not meet the estate value criteria under Colorado’s small estate statute. Therefore, Ms. V~ will not qualify as a legal representative to receive the underpayment under Colorado’s small estate statute.

CONCLUSION

We believe that applicable Colorado law relating to Ms. V~’s status as trustee does not give her the authority to collect the assets of her deceased sister’s estate. Additionally, Ms. V~ does not satisfy the statutory requirements to serve as a personal representative under Colorado’s small estate statute. She could, however, apply to be a court-appointed personal representative under Colorado’s informal proceedings. Once Ms. V~ provides acceptable proof that she is a court-appointed legal representative (see POMS GN 02301.035C (1) – (4)), it would put her in a position to give “good acquittance” to the agency and allow the agency to release the underpayment to her.

Donna L. C~

Acting Regional Chief Counsel Region VIII

Nadia N. S~~
Assistant Regional Counsel

1_/ Any part of a decedent’s estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent’s heirs as prescribed by Colorad