You asked us for an opinion concerning the payment of an underpayment due a deceased
NH where two claimants have requested payment as a legal representative under the
Minnesota small estate statute. Specifically, you want to know whether the documents
submitted by both claimants meet the requirements for SSA to receive good acquittance
and, if so, whether the Minnesota small estate statute provides any distribution guidance
when more than one party qualifies as a legal representative. You also requested that
we provide legal justification language to be used when notifying the claimant who
does not receive the underpayment.
We conclude that both claimants meet the requirements under the Minnesota small estate
statute. Under such circumstances, agency policy instructs that the underpayment should
be divided equally between the entitled persons. Accordingly, we conclude that the
NH’s underpayment should be paid to both claimants, divided equally.
The NH, Thomas, died on June 21, 2012, while domiciled in Minnesota. His Title II
benefit payment for May 2012 was returned, creating a $1,398 underpayment.
On July 27, 2012, Daniel (who lives in Arkansas) filed a claim for payment of the
NH’s underpayment (form SSA-1724). He stated that he was the NH’s brother, and that
he was the legal representative of the NH’s estate. With his claim, Daniel submitted
an affidavit and a copy of the NH’s death certificate.
In a letter to the Sherwood, Arkansas Social Security Office dated July 27, 2012,
the Otter Tail County Attorney (located in Fergus Falls, Minnesota) stated that the
County had a preferred claim against the NH’s estate since county-funded disposition
services had been expended, and that it was submitting a claim pursuant to Minn. Stat.
§ 524.3-1201 (Minnesota small estate statute). Attached to the letter was an Affidavit
for Collection of Personal Property. In the affidavit, a collections officer stated
that Otter Tail County Human Services had a claim for recovery of county-funded disposition
services paid on behalf of the NH under Minn. Stat. § 261.04. Also attached to the
letter was a receipt from the Otter Tail County Human Services Board for payment of
$1950 to a funeral home for cremation services.
At our request, the Sherwood Field Office asked Otter Tail County to submit a copy
of the NH’s death certificate; the County did so in March 2013.
Under the Social Security Act (Act), regulations, and agency policy, a Title II underpayment
that is due a deceased individual is paid pursuant to an order of priority. See Section 204(d) of the Act; 20 C.F.R. § 404.503; POMS GN 02301.030. When an individual is not survived by a spouse, children, or parents, the underpayment
will be paid to the individual’s legal representative. See Section 204(d)(7) of the Act; 20 C.F.R. §404.503(b)(7); POMS GN 02301.030A.g.
A legal representative, for purposes of qualifying for an underpayment, is generally
the administrator or executor of the estate of the deceased individual. See 20 C.F.R. § 404.503(d); POMS GN 02301.035A. However, when an estate is unadministered, as in this case, a legal representative
is also defined as an individual, institution, or organization acting on behalf of
the unadministered estate who/which can give SSA good acquittance. See 20 C.F.R. § 404.503(d); POMS GN 02301.035B.1. A person or entity gives SSA good acquittance when payment to that person or entity
will release SSA from further liability for payment. See 20 C.F.R. § 404.503(e); POMS GN 02301.040. In accordance with 20 C.F.R. § 404.503(d), the following individuals can qualify
as a legal representative, provided they can give SSA good acquittance:
a person who qualifies under a state’s small estate statute,
a resident of a foreign country who has the right to receive assets of the estate
under the laws of that country,
a public administrator, or
a person who has the authority, under applicable law, to collect the assets of the
estate of the deceased individual.
In determining an individual’s capacity to act as a legal representative, we apply
the law of the state where the deceased individual was domiciled at the time of his
death. See POMS GN 02301.035B.3. Here, the NH was domiciled in Minnesota at the time of his death, so Minnesota
Procedurally, unless the file contains sufficient information to determine the identity
and current address of all persons entitled to the underpayment, a written request
for payment is required from at least one person entitled to receive a portion of
the underpayment. See POMS GN 02301.050A. While the applicable form (SSA-1724) is not required, a formal request for payment
must contain the following information: the relationship of the applicant to the deceased,
the number of persons in the highest class of priority and their names and addresses,
the SSN of the applicant(s) if he has one, and whether the deceased had a surviving
spouse living in the same household at the time of death. See POMS GN 02301.050B.2. Here, Daniel submitted a completed and signed form SSA-1724. Since at least one
person filed a written request for payment containing the required information, it
does not appear that Otter Tail County’s failure to submit one is a bar to its claim.
In order to qualify as a legal representative under a state’s small estate statute,
a claimant must show evidence that the statutory requirements have been met. See POMS GN 02301.035C.1.b. Minnesota’s small estate statute is found at Minn. Stat. § 524.3-1201 et seq. Under this statute, 30 days after the death of a decedent, a person claiming to
be the successor of the decedent or a state or county agency with a claim authorized
by Minn. Stat. § 256B.15 (i.e., a claim for recovery of medical assistance provided under a medical assistance program)
may receive a payment due the decedent by presenting the decedent’s certified death
record and a proper affidavit. See Minn. Stat. § 524.3-1201(a). The affidavit must state the following:
the value of the probate estate does not exceed $50,000;
30 days have elapsed since the death of the decedent;
no application for the appointment of a personal representative is pending or has
been granted in any jurisdiction; and
the claiming successor is entitled to payment or delivery of the property.
See id. A person who makes a payment pursuant to an affidavit is discharged and released
to the same extent as if the claiming successor were the personal representative of
the decedent. See id. § 524.3-1202.
As relevant here, the NH’s underpayment can only be paid to “a person claiming to
be the successor of the decedent.” Minn. Stat. § 524.3-1201(a). Daniel , the NH’s
brother, certainly qualifies as a person claiming to be a successor. Otter Tail County
also meets this definition. Under Minn. Stat. § 524.1-201(38), the term “person” is
broadly defined to include an organization or other legal entity. As well, the definition
of “successors” includes a county government that provides the funeral and burial
of a decedent. See id. § 524.1-201(51).
A claiming successor must present both the decedent’s certified death record and a
proper affidavit containing the statements required by Minn. Stat. § 524.3-1201(a).
Here, Daniel submitted both documents. Otter Tail County submitted a proper affidavit
but did not submit the NH’s death certificate. However, we believe that the POMS,
which generally appears to take a broad and inclusive approach concerning Title II
underpayments due a deceased beneficiary, advises in favor of identifying and paying
all possible entitled claimants. For example, POMS GN 02301.060B.1 states that, before paying an underpayment, the adjudicating office must determine,
once the highest order of priority is determined, whether there are other living individuals
in that category. Also, under POMS GN 02315.005B, if a person seeking legal representative status appears to meet the requirements
of the small estate statute, but has not yet complied with those requirements, the
field office is instructed to advise him/her to contact the appropriate civil authority
for information on satisfying the state’s requirements. Taken together, these two
POMS provisions support giving Otter Tail County an opportunity to complete its claim.
Based on the above authority in the POMS, we initially advised that Otter Tail County
be given an opportunity to submit the NH’s death certificate. Accordingly, the Sherwood
Field Office contacted Otter Tail County, and the County subsequently submitted the
Thus, both Daniel and Otter Tail County qualify for payment of the NH’s underpayment
as legal representatives of his estate under Minnesota’s small estate statute. As
a result, we next determine whether Social Security law or policy provides guidance
on the distribution of an underpayment when there are multiple legal representatives.
The POMS instructs that, when more than one person exists in the highest order of
priority, the underpayment is to be divided equally between the entitled persons.
See POMS GN 02301.030B.4, GN 02301.070B.3. Accordingly, pursuant to agency policy, Daniel and Otter Tail County should each
receive half of the NH’s underpayment. Payment of the NH’s underpayment to these two
parties would give SSA good acquittance. See Minn. Stat. § 524.3-1202.
We note that, under the Minnesota small estate statute, Daniel may have an obligation
to pay his proceeds from SSA to Otter Tail County. Under § 524.3-1201(c), a claiming
successor is required to disburse the proceeds collected to “any person with a superior
claim under section . . . 524.3-805.” Section 524.3-805 pertains to creditors’ claims,
and provides an order of payment of claims from an estate. “Reasonable funeral expenses”
and “all other claims” are second and seventh on the list, respectively. Otter Tail
County appears to have a superior claim than Daniel against the NH’s estate, since
the Otter Tail County paid for the NH’s disposition services (burial). This, however,
would be a matter for Daniel and Otter Tail County to resolve.
For the reasons discussed above, we conclude that SSA should pay the NH’s underpayment
to Daniel and Otter Tail County, divided equally. As requested, we also provide language
below for notifying the claimants regarding their payments.
Donna L. Calvert
Regional Chief Counsel Region V
Assistant Regional Counsel