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Minnesota Department of Human Services MA Estate Recovery Manual
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I. How to recover on an MA claim when someone else is probating the estate

The guidance in this section describes how you can assert a Medical Assistance (MA) claim when another party is probating the estate. Estate recovery in probate usually takes this course, with you advocating for your claim by contacting the personal representative, the representative’s attorney, the probate registrar, or the court as appropriate. Throughout this process of establishing and recovering on an MA claim, the functions of formal and informal probate are similar. Consequently, you can apply similar MA-claim procedures to both types of administration. The following guidance applies to all probate proceedings, with noted exceptions.

A. Preparing for an MA claim

Understanding the type and amount of an MA claim and getting an estate to recognize the claim are important steps in the probate process. You can track probate proceedings to assert a claim in any of these ways:

1. Filing a demand for notice

When a party seeks appointment of a personal representative, the party must give notice of the probate proceedings to all other parties with an interest in the estate, including you as the local agency with a potential MA claim.

To ensure you are part of the probate process and get notice of probate proceedings, file a demand for notice with the court upon learning that an MA member, or the member’s spouse, has died. You can file a demand before probate has been opened. The demand entitles you to get advance notice of any petition or filing on the decedent's estate. See Minnesota Statutes, section 524.3-204.

Rely on your own process to identify recently deceased MA members. You may also refer to DHS’ monthly death data match report.

See the Minnesota Judicial Branch’s instructions for submitting a demand for notice.

When filing demand for notice, ensure that the notice states all the following:

  • • The decedent’s name
  • • Your (local agency’s) name
  • • Your (local agency’s) address or your attorney’s address
  • • The nature of your (local agency’s) interest in the estate (i.e., you have a claim for MA paid on behalf of the decedent or the decedent’s spouse)
  • If a demand for notice is on file, the petitioner for probate notifies you of any filings or hearings by delivering a copy of the notice or by mailing a copy to the address you provided in the demand. In addition, the court administrator mails a copy of the demand to the personal representative upon the representative’s appointment.

    2. Giving notice to the commissioner

    As soon as possible after being appointed, the personal representative of the estate of an MA member or the member’s spouse must send the Special Recovery Unit (SRU) at DHS a notice to the commissioner of human services about the possible claim for recovery of MA.

    In response to this notice, DHS sends a letter to (1) the personal representative or the estate’s attorney; (2) you (the local agency in the county where probate has been opened); and (3) if MA was received, the decedent’s local agency of financial responsibility (if it is a county other than the probate county). The DHS letter tells you whether the person or people named in the notice received MA.

    To designate yourself as your agency’s contact for DHS response letters, send an email titled “Notice to Commissioner Contact” with your name, address, email address, and phone number to DHS.SRUfax@state.mn.us.

    a. Distribution prohibition

    A personal representative cannot distribute probate assets until 70 days after the date the notice is served on the commissioner of human services, unless you consent to a distribution before that time. This restriction does not prohibit the personal representative from selling estate assets before the 70-day mark, but it does prohibit the representative from distributing the net proceeds from such a sale.

    b. Consent to distribution

    You may consent to a personal representative's distribution of estate assets during the 70-day period after service of the notice to the commissioner. You can condition your consent on criteria you deem appropriate.

    If you consent to a distribution, you must send the estate a written certificate showing your consent to the early distribution of assets at no cost. The certificate must include all the following:

  • • The name of the estate, case number, and court in which the estate is pending
  • • Your (the local agency’s) name
  • • The date
  • • A description of the asset the consent applies to
  • • A statement that you (the local agency) consent to the distribution of the assets described in the consent during the 70-day period after service of the notice to the commissioner of human services
  • • A statement of whether the consent is unconditional or conditional and, if it is conditional, a statement of the terms and conditions of the consent
  • See Minnesota Statutes, section 524.3-801, subdivision (d), paragraph (6).

    A certificate with these provisions acts as a waiver of the 70-day distribution restriction period. But the certificate is not a waiver of your MA claim. Anyone who receives assets transmitted under your consent to early distribution may have to pay back part or all of those assets to satisfy your MA claim. Before consenting to early distribution, review each case individually to determine whether your claim is likely to be satisfied.

    3. Requesting a claims payment history

    If you know that a decedent received MA, or the decedent’s deceased spouse received MA, determine whether a claim is allowed under Minnesota law. If a claim is allowed, request the MA member’s claims history to determine the amount of MA paid for the member’s health care. To do this, send DHS a completed Request for an MHCP Member’s Claims Payment History (DHS-2133) (PDF). DHS will then return a claims payment history to you with amounts to form the basis of an MA claim.

    4. Requesting a bond

    If your MA claim amount is $1,000 or more, you can make a written demand that a personal representative give a bond. You must file the demand with the court and mail a copy to the personal representative, if appointment and qualification have occurred. The court may then require a bond or excuse the bond requirement. Failure of the personal representative to meet the bond requirement of giving suitable bond within 30 days after receipt of notice is cause for removal and appointment of a successor personal representative. See Minnesota Statutes, section 524.3-605.

    B. Presenting an MA claim

    As a creditor of the estate for an MA claim amount, you must make your claim known to the estate’s personal representative. This is called “presenting” the claim.

    1. The statement of claim

    To inform the personal representative of your claim, deliver or mail a written statement of the claim to the personal representative and, if applicable, the representative’s attorney. In addition, send the statement to the court to ensure that the MA claim has been fully presented to all parties. (Note: The court is not required to notify the personal representative that an MA claim has been presented.)

    When sending a written statement of claim, state that the amount of an MA claim may change upward or downward because of forthcoming claims from health care providers. Providers have one year after the date of service to bill MA.

    If more than six months go by after you send your written statement of claim and the personal representative has not yet allowed your claim, request a new claims payment history from DHS to see whether the claim total has changed. If there is a difference in the two histories, amend your claim amount and use the newer claim total.

    2. When to present the statement of claim

    To ensure efficient processing of MA claims, present your statement of claim within four months after the date of the notice of the probate proceeding. See Minnesota Statutes, section 524.3-803, subdivision (a), clause (1). See also Minnesota Statutes, section 524.3-801.

    C. Payment determination for an MA claim

    Whether you successfully recover on an MA claim may depend on the amount of assets in the estate, administrative costs, funeral expenses, court proceedings, and how you assert your claim throughout the probate process. The following guidance describes the priority of your claim, how payment is determined, other parties’ liability for paying the MA claim, and how you can assert your claim against the decedent’s interest in a multiple-party account.

    1. When estate claims begin being paid

    The personal representative begins paying allowed claims after expiration of the earliest of limits for presenting claims under Minnesota Statutes, section 524.3-803.

    2. Early payment

    A personal representative can pay an MA claim before the deadline for presenting claims. But if a party with a claim on the estate prioritized above the MA claim does not get the full amount because of the early payment, then the personal representative can become personally liable for that amount. See Minnesota Statutes, section 524.3-807, subdivision (b), paragraph (1).

    The personal representative can avoid becoming personally liable if he or she requires the payee to give adequate security for the refund of any of the payment necessary to pay other claimants. Regardless, the possibility of personal liability incentivizes the personal representative to avoid early payment and wait for the end of the applicable time limit under Minnesota Statutes, section 524.3-803, before paying claims.

    3. Priority of an MA claim

    In probate proceedings, Minnesota law specifies which claims must be paid before MA claims and which claims should be paid afterward. In addition, Minnesota law allows you (as a local agency) to file an MA claim against a decedent’s homestead, whereas most other parties cannot claim against the homestead unless they established “valid charges” on the homestead before the decedent’s death.

    a. Priority among all claims in probate

    Minnesota law classifies estate claims by type and establishes an order for their payment in probate. This prioritization is necessary only when an estate is “insolvent”; that is, the estate does not have enough assets to pay all probate expenses, including creditors. The prioritized list of estate expenses is found in Minnesota Statutes, section 524.3-805.

    MA claims have fourth priority on the list. MA claims are preceded in priority only by the following:

  • 1) Costs of the probate administration
  • 2) Reasonable funeral expenses
  • 3) Debts and taxes with preference under federal law
  • You may not be able to recover on your claim if any of the above expenses are greater than the amount of assets in the estate. However, because MA claims benefit from an expanded definition of “estate,” you may be able to recover from assets that parties collecting on the above expenses cannot recover from. For instance, you may be able to recover against the decedent’s homestead, whereas the homestead exemption may limit other creditors who have priority over an MA claim.

    The following expenses are prioritized after an MA claim:

  • 4) Reasonable and necessary medical, hospital, and nursing home expenses for the care of the decedent during the year immediately preceding death
  • 5) Debts with preference under other laws of this state, and state taxes
  • 6) All other claims
  • If an estate has enough assets to pay all expenses, including all valid claims made by creditors, then the estate is “solvent” and the above prioritization is unnecessary.

    b. Priority to a decedent’s homestead assets

    If the homestead passes by descent or will to the spouse or decedent's descendants or to a trustee of a trust of which the spouse or the decedent's descendants are the sole current beneficiaries, it is exempt from all debts that were not valid charges on it at the time of the decedent's death except that the homestead is subject to a claim filed pursuant to Minnesota Statutes, section 246.53, for state hospital care, or section 256B.15, for MA benefits. See Minnesota Statutes, section 524.2-402, paragraph (c).

    Because MA claims do not fall under this “homestead exemption,” if a family member is administering the estate and requesting excessive administrative expenses, you can use your MA claim’s unique priority to homestead assets to negotiate.

    Note: The homestead exemption discussed in this section is different from the homestead exclusion noted earlier in this guide. The homestead exemption limits most estate creditors from claiming against a decedent’s homestead if the creditor did not have a “valid charge” on the homestead before the decedent’s death.

    The homestead exclusion provides that the decedent’s homestead must be the last asset that a local agency claims against if a sibling, child or grandchild (1) lived in the homestead before the decedent or decedent’s spouse died, (2) continues to live in the homestead, and (3) provided care that permitted the decedent to live in the homestead without needing medical institution services, such as long-term care or home and community-based services.

    4. Determination

    If the estate includes enough assets to pay for part or all of an MA claim, whether the claim will actually be paid depends on the decision of the personal representative, or the court if necessary. If it is decided that part or all of an MA claim will be paid, then that amount is “allowed.” If payment is denied, then that claim amount is “disallowed.”

    The personal representative or the court may allow, partially allow, partially disallow, or disallow payment of an MA claim. If the personal representative disallows an MA claim in any way, you can challenge the disallowance with a petition to the court. The deadline for this petition depends on the personal representative’s actions and when the estate closes.

    a. Allowing payment of an MA claim

    The personal representative allows an MA claim by doing one of the following:

  • • Paying the claim
  • • Sending a notice of allowance of claim
  • • Failing to send you a notice of disallowance within two months after the period for presentation of a claim expires (unless the personal representative can show good cause for not sending you notice within this period)
  • The court may allow a claim upon your petition.

    b. Disallowing payment of an MA claim

    A personal representative or the court may disallow payment of a claim in whole or in part. The personal representative disallows a claim by mailing you a notice of disallowance. The personal representative cannot disallow a claim solely because the estate does not include enough assets to pay all debts in the estate.

    Note: If the personal representative is going to disallow your MA claim, he or she must do so within two months after the period for presentation of a claim expires. If the personal representative fails to do so, your MA claim is allowed by default, unless the personal representative can show good cause for not sending you notice within the required two-month period.

    c. Challenging disallowance of an MA claim

    You can challenge the disallowance of your MA claim by filing a petition for allowance in the court or by starting a proceeding against the personal representative to allow the claim.

    i. Petition for allowance

    You must file the petition within two months after the personal representative mails the notice of disallowance. See Minnesota Statutes, section 524.3-806. The two-month period begins on the date the notice of disallowance is mailed, not on the date you get the notice.

    However, the two-month deadline applies only if the authorized representative warns you that your MA claim will be barred. If the notice of disallowance does not include this warning, then you can appeal the disallowance any time before the estate closes.

    ii. Proceeding against the personal representative

    If you choose to challenge the disallowance and start a proceeding against the personal representative, you must do so within two months after the personal representative has mailed the written notice of disallowance. See Minnesota Statutes, section 524.3-804. Upon your petition, the court may extend this two-month period to “avoid injustice.”

    D. Liability of those distributing and receiving assets subject to an MA claim

    In certain situations, an estate’s assets might be distributed even though you have a valid MA claim, and the distributed assets may need to be collected to satisfy your claim. You may claim against the assets that parties received. In addition, the personal representative may become personally liable for part or all of an MA claim amount if he or she improperly distributed estate assets in a way that injured your claim.

    1. The personal representative

    A personal representative might distribute estate assets to a party despite your having a valid MA claim to those assets. However, if the personal representative distributes assets improperly, the personal representative may become personally liable for a part or all of the MA claim amount.

    For example, a personal representative can be held personally liable for obligations arising from the ownership or control of estate assets if he or she “is personally at fault” for the failure to meet those obligations. See Minnesota Statutes, section 524.3-808, subdivision (b).

    In addition, a personal representative who negligently or willfully deprives you of your priority (among other creditors) becomes personally liable if you could have collected more of your MA claim had you been given your rightful priority. See Minnesota Statutes, section 524.3-807, subdivision (b), paragraph (1).

    2. Liability of parties that received assets subject to an MA claim

    If a personal representative distributes estate assets to a party despite your having a valid MA claim to those assets, the party with the distributed assets (the “distributee”) is liable to your MA claim, subject to certain conditions. Distributees are liable for the value of their own distribution they receive at the time of the distribution. The liability is for the value of the distribution, not for the assets themselves.

    a. Sharing liability among multiple distributees

    If more than one distributee is liable, each must bear the cost of paying the MA claim as if the claim had been paid during the course of administration of the estate. If one distributee fails to notify the other distributees of the claimant’s demand for payment in time to allow them to join in any proceeding in which the claim is asserted, that distributee loses the right to require the other distributees to pay their share of the claim.

    b. Limitations on actions against distributees

    Your right to recover against distributees is barred three years after the date of the decedent’s death, or one year after the distribution of the property, whichever is later.

    These limitations, however, do not bar a lawsuit to recover property or value as a result of fraud. In addition, the above limitations do not apply if the personal representative closed the estate without providing a notice to the commissioner. See Minnesota Statutes, section 524.3-1004.

    E. Rights to a decedent’s interest in multiple-party accounts

    Unlike other estate creditors, you can assert your MA claim against a decedent’s interest in a multiple-party account. A “multiple-party account” is a joint account or a payable-on-death (POD) account.

  • • “Joint account” means an account shared by the decedent and one or more parties.
  • • “POD account” means an account payable on request to one or more designated parties on the death of the owner(s).
  • • A POD account does not include a trust account established under a testamentary trust or living trust, or a fiduciary account arising from a fiduciary relationship, such as attorney-client.
  • Generally the decedent’s interest in a multiple-party account is not a probate asset, but under Minnesota’s expanded definition of estate for MA recovery, you can assert your claim against this interest. You have the right to recover from a deceased MA member’s assets in a multiple-party account if all the decedent’s assets outside the account are not enough to pay the MA claim.

    1. Surviving account holders

    The amount of an MA claim left unpaid, after all the decedent’s other remaining assets have been applied to the claim, determines what surviving account holders may get from the account. If the unpaid MA claim amount is greater than or equal to the amount of account funds for which the decedent was the source or beneficial owner, then the surviving account holders do not get any of the decedent’s interest.

    But if the unpaid MA claim amount is less than the amount of account funds for which the decedent was the source or beneficial owner, the surviving account holders get whatever amount is left after the MA claim has been paid. In other words, surviving account holders get only the amount of the decedent’s interest in the account that is left over after you recover on the MA claim. See Minnesota Statutes, section 524.6-207.

    In addition, a surviving multiple-party account holder or recipient of a POD account who gets payment from a multiple-party account after the deceased MA member’s death is liable to you for the unpaid MA claim amount (after all the decedent’s other assets have been applied).

    2. Recovering on the interest

    You may make a written demand on the personal representative to start a proceeding for recovery of the decedent’s interest in the account. Because you are in a probate proceeding, you make a written demand in probate, rather than making an affidavit of collection against the financial institution. You must do this within two years of the date of the decedent’s death; otherwise the action is barred.

    When the personal representative gets the demand, the representative must begin a court action to recover the decedent’s interest in the multiple-party account. The financial institution at which the account is located can pay the account according to its terms. However, if the financial institution is served with legal notice by the personal representative or interested party, the payout terms may be altered.

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