You asked whether a house, belonging to the unprobated estate of Tony’s sister, and
occupied by Tony as his primary residence, is countable to him as a resource for purposes
of determining his eligibility for Supplemental Security Income (SSI). You also asked
whether Tony received unearned income through in-kind support and maintenance (ISM)
because he lives in the house without paying mortgage or rent.
The house is not a countable resource to Tony, and his failure to make mortgage payments
does not constitute ISM.
SUMMARY OF EVIDENCE
Tony is the sole heir of his sister’s estate. His sister owned a home that Tony still
occupies as his primary residence. Currently, Tony is not paying mortgage or rent
for his use of the house. His sister’s house is still in probate because her estate
cannot afford to satisfy a city loan secured against the property or pay property
taxes amounting to $11,000.00. Additionally, the estate does not have funds to pay
accrued attorney fees for probate related services.
An individual with resources that exceed the statutory limit are not eligible for
SSI benefits. See Program Operations Manual System (POMS) SI 01110.003. Unprobated property may be countable as a resource to an individual that has an
ownership interest in the property and is an heir of the deceased. See POMS SI 01120.215(A). An ownership interest in unprobated property exists if an individual has use
of a deceased’s property, or documents indicate that the individual is heir to the
property. Id. As his sister’s sole heir, and as an occupant of the house, Tony has an ownership
interest in the real property. However, it is premature to attribute the house to
Tony as a resource. California Probate Code § 7001 provides that a decedent’s property
is subject to administration and is subject to the rights of beneficiaries, creditors,
and other persons as provided by law. Cal. Prob. Code § 7001.
Here, the house has at least one outstanding loan and outstanding property taxes.
Unless his sister’s estate has funds to satisfy those debts, the property may be subject
to foreclosure. At the very least, the estate’s inability to pay such debts inhibits
Tony’s ability to sell the house. See 20 C.F.R. § 416.1201(a) (for real property to be considered a resource, an individual
must be able to liquidate his right to that real property); see also POMS PS 01405.006 (noting that, during probate, an individual cannot readily obtain
and liquidate estate property because it is subject to sale in order to pay creditors).
Accordingly, it would be premature to attribute the house as Tony’s current resource.
Moreover, the home exclusion rule precludes the house from being counted as Tony resource.
See POMS SI 01130.100. An individual’s home, regardless of value, is an excluded resource. See POMS SI 01130.100(B)(1). An individual’s home is property in which he has an ownership interest and
serves as his principal place of residence. POMS SI 01130.100(A)(1). As discussed,
Tony has an ownership interest in the unprobated house because he occupies the house
and he is the only heir to his sister’s estate. Additionally, Tony uses the house
as his primary residence. Accordingly, the house is excluded as a resource.
Finally, Tony occupation of the house is not considered ISM. Pursuant to Administrative
Message (AM) 09060(E)(2), the Agency does not consider nonpayment of mortgage to be
ISM because the obligation to pay still exists. Although, the obligation to pay mortgage
resides with Ms. D~’s estate rather than Tony, the reasoning remains the same. Whatever
ownership interest Tony has in the house is subject to the house clearing probate.
The failure of Tony to pay mortgage presents the risk that the secured lender may
foreclose on the property, ending Tony interest in and possession of the property.
Accordingly, Tony has an interest in seeing that the mortgage is paid, and his failure
to satisfy those payments does not forgive the estate’s obligation to pay. Thus, finding
Tony nonpayment of mortgage to be ISM would not be appropriate.
Even if the house would otherwise be a resource to Tony, it falls under the home exclusion
rule. Furthermore, Tony occupation of the house without paying rent or mortgage is
not ISM because the obligation to pay the mortgage remains, even if that obligation
is not satisifed.