A Canadian Indian, D, died intestate (without a will) in January 1968. At the time of his passing he had a social security underpayment of $179.80. D left no surviving widow, children, or parents.

The question was whether or not the Administrator of Estates, Indian Affairs Branch of the (Canadian) Department of Indian Affairs and Northern Development could receive D’s overpayment.

There is an order of priority to who can receive an underpayment: 1) a spouse either living with decedent at the time of his death or entitled to a benefit based on his earnings record in the month of his death; 2) a child or children entitled to benefits on the same earnings record in the month of death; 3) a parent or parents entitled to benefits on the same earnings record in the month of death; 4) spouse who was neither entitled to benefits on the same earnings record nor living with the decedent at the time of death; 5) a child or children not entitled to benefits on the same earnings record; 6) a parent or parents not entitled to benefits on the same earnings record.

If there is no person who meets the aforementioned requirements or if such persons have predeceased the decedent, then the underpayment may be paid to the decedent’s legal representative.

Social security generally gives good acquittance to one who has the power to collect decedent’s estate.

A Canadian statute clearly gave authority to the (Canadian) Minister of Indian Affairs and Northern Development to appoint executors of the wills and estates of deceased Indians. These offices moreover carry with them the authority to collect the debts due to a decedent’s estate. In addition the authority to act in these offices is clearly delegated by statute to the Administrator of Estates.

Therefore it was proper to pay D’s underpayment to the Administrator of Estates, Indian Affairs Branch of the (Canadian) Department of Indian Affairs and Northern Development.

See Social Security Ruling (SSR) 68-31.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.