TN 17 (02-93)

A. Policy

A legal representative must be notified of how and when an overpayment was made and the estate's liability for repayment.

If there are insufficient funds in the estate to satisfy all of the decedent's debts, the debts due the U.S. take priority (Title 31, United States Code, Section 3713) over all but reasonable funeral expenses, reasonable administrative fees (including executor fees) and debts secured by valid perfected liens. (SSA debts are unsecured.)

Except for Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon and Washington, SSA is subject to the jurisdiction of the State court when a formal claim is filed.

B. Procedure

1. States in which SSA is subject to state court jurisdiction

1. When refund is not received based on a verbal request (GN 02215.050B.), the PC will request refund.

   In addition to the overpayment circumstances, the PC notice will also explain:

   • The Government's priority as indicated in A. above, and

   • The legal representative's personal liability if he/she pays other debts without satisfying the debt to the U.S., and

   • The right to reconsideration and waiver, and

   • That any questions regarding the Government's claim be directed to the PC.

2. If there is no response to the overpayment notice 60 days after the notice is sent, or a response indicates a formal claim will be contested:

   • Refer the claim via memorandum through the ARC, POS to the Chief Counsel for advice as to the propriety of filing a formal claim. Do not send the claims folder unless specifically requested.

   • Diary for 6 months via the Suspend Collection (DFSU) screen (MSOM DMS 007.004).

3. Process any waiver request in accordance with GN 02250.360.

4. Treat any protest/appeal of the estate's liability for repayment (GN 02205.001B.) as a request for reconsideration of that issue. The PC will prepare a reconsideration determination only.

5. If the legal representative requests that SSA file a formal claim, the PC will request the assistance of the Chief Counsel of the region servicing the State where the beneficiary resides in preparing a claim in the form required under State law. The Chief Counsel will prepare the claim for the signature of the ARC, PCO (or Director, ODIO). Because of the imminent expiration of the statutory period for filing claims against an estate, a Chief Counsel may forward a claim to the nearest PC rather than the PC actually servicing the claim. In such cases, comply with the request for signature and notify the servicing PC accordingly. Diary for 12 months via a DRDY screen. DMS 006.021

   NOTE: Nonclaim Statutes: Some state laws state that claims against a decedent's estate must be filed or presented to the executor or administrator within a certain period of time, or they will be barred. These statutes are commonly referred to as “nonclaim statutes.” As a result of these statutes, if we do not file our claims within a certain period of time, attorneys often assert that SSA is barred from pursuing such claims. This is incorrect, as “nonclaim statutes” do not apply to claims of the federal government, Social Security Ruling 86-2; United States v. Summerlin, 310 U.S.414 (1940). It is unnecessary for the government to appear in or become a party to the probate court proceedings before bringing suit to enforce its claim. See United States v. Boots, 675 F. Supp. 550, 552 (E.D.Mo.1987); United States v. Anderson, 66 F.Supp.870, 871 (D.Minn.1946); Viles v. Commissioner of Internal Revenue, 233 F.2nd 376, 380 (6th Cir. 1956). Moreover, priorities accorded the government are not affected by statutes of limitations. See United States v. Snyder, 207 F. Supp. 189,191 (E.D. Pa. 1962).

2. States in which SSA is not subject to state court jurisdiction

1. In the States of Arizona, California, Hawaii, Nevada,
   Oregon and Washington, proceed as follows:

   • Always notify the legal representative of the overpayment in accordance with GN 02215.055B.1. and advise him/her that a completed creditor's claim form is attached.

   • Attach the completed claims forms to the letter.

NOTE: Blank creditor's claims forms may be obtained from the OAS staff.

2. In Idaho, ask the FO to provide the appropriate creditor claim form and proceed as in GN 02215.055B.2.a.

3. In Alaska, send an overpayment notice in accordance with GN 02215.055B.1. and also ask the legal representative to supply the necessary forms if a formal claim must be filed in order to receive refund.

   If the representative requests that a formal claim be filed by SSA but does not submit necessary forms to the PC or make any other attempt to resolve the issue within 90 days of initial notice, refer the matter to the Chief Counsel for advice on the appropriate action to be taken.

4. Adhere to any State time period for filing a creditor's claim. In Washington and Idaho, these claims must be filed within 4 months from the date of the notice to creditors.

5. Make sure that the amount of the overpayment and the legal authority for the claim appear on all claim forms submitted.

6. Prepare the form for the signature of the ARC, PCO (or Director, ODIO) and input a DRDY screen (DMS 006.021) with a 12 month diary and annotate “Estate Development” to the MBR special message field.

7. If a legal representative refuses to honor SSA's claim for any reason, immediately refer to the Chief Counsel.

   • Forward the refusal notice/letter, by memorandum through the ARC, POS.

   • Briefly explain the facts in the case, and

   • Input a DRDY screen (DMS 006.021) with a 12 month diary
     and annotate “Estate Development” to the MBR special message field.

8. Process any waiver request or protest of the estate's liability in accordance with GN 02250.360.