Accrued Benefits

[DexterB]

My Father was awarded pension benefits approximately 16 months prior to his death in December 2009. However, because the VA determined that a convervator was needed--and because of the slowness of the process--a conservator was never actually appointed and no benefits were paid out before his death.

My question is: who gets the accrued benefits?

From my research on the VA website, it appears that the benefits would go to the children in equal shares (all children are grown with their own families and there is no surviving spouse).

My problem with this is that under my Father's will, the children did not receive equal shares and one child was completely disinherited. However, under the apparent VA distribution scheme, all the children would get the same amount.

This makes little sense to me, because had the benefits actually been paid to me before his death, there would be no question that they would be distributed in accordance with his will.

Neverthless, I present this situation to you good folks to confirm what I think is the case: that all the children will receive equal shares, regardless of what the will states.

Am I correct?

Thank you for your help.

[carlie]

DexterB,

Welcome to Hadit.

Other's will chime in.

carlie

[Berta]

"From my research on the VA website, it appears that the benefits would go to the children in equal shares (all children are grown with their own families and there is no surviving spouse)."

That would be possible for any SC accrued under Nehmer AGent Orange claims .

I am not aware of any other type of accrued that would be payable to next of kin.

Did he have a living spouse?

Who filed an accrued claim after his death? What response has the VA made regarding that claim?

Can you post a link to the part of the VA web site where you found the above info?

[Pete53]

Welcome to Hadit and once again the VA has screwed more people.

Unfortunately the VA is going to do things their way and if the kids want any money they will need to act together.

If the Dad left a will than the executor should proceed and obey the provisions in the will if the VA will go along with it.

[Berta]

Did you mean this regulation?:

Accrued benefits

"Under 38 U.S.C.A. § 5121, a proper party is entitled to any

periodic monthly benefits under laws administered by the

Secretary to which the veteran was entitled at his death

under existing ratings or decisions, or those benefits based

on the evidence in file at the time of the veteran's death

which were due and unpaid preceding the veteran's death. See

38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In Jones v. West,

136 F.3d 1296 (Fed Cir. 1998), the United States Court of

Appeals for the Federal Circuit held that the veteran must

have had a claim pending at the time of his death for such

benefits or else be entitled to them under an existing rating

or decision in order for a surviving spouse to be entitled to

accrued benefits. Applications for accrued benefits must be

filed within one year after the date of death. 38 U.S.C.A. §

5121©; 38 C.F.R. § 3.1000©."

I am puzzled whether this would apply to accrued NSC pension benefits as I dont see why it wouldnt.

I have never seen this type of claim before.

I suggest that someone as next of kin MUST apply within the first year after his death (by this December) for accrued benefits.

But also I suggest you get a vet rep who has knowledge of this type of benefit.

For over 20 years I thought it meant only SC claims and not pension and I could be wrong.

Also it says "proper party" which always meant spouse as I understood this and next of kin if spouse is deceased for all Nehmer AO claims.(Or Estate of veteran in AO accrued claims)

[hawkfire27]

If you are talking about his having a fiduciary because he was rated incompetant to handle government funds, then all accured benefits not paid out get returned to the VA.

This money was supplied for him to live, and if he didn't use the money the (stupid) VA rules says any remaining money in a fiduciary account is to be returned to the VA. If there is no money in the fiduciary account yet because any retor etc has not been paid yet, you may have a case to claim that money as his heirs, because it was never by definition in a fiduciary account. You would probably need to get a lawyer, because this would be won on a technicality. The VA would be unlikely to just give you the money. They fight most widow for the payment they recieve the 1st of the month that the veteran dies and yet the VA pay one month behind. So if they are tying to get money from widows the same month that their spouse dies, I doubt they will just hand the money over. GET a lawyer.

If you are not talking about a fiduciary, well I hope the info above helps someone.

Good luck.