Opinion 89-9


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


ABANDONED AND LOST PROPERTY -- Compensation of Employees (disposition of unclaimed paycheck of deceased employee)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (disposition of unclaimed paycheck of deceased employee)

SURROGATE'S COURT PROCEDURE ACT, §1310: A municipality may pay the unclaimed wages of a deceased employee who died intestate to the proper party upon affidavit as provided in this section.
ABANDONED PROPERTY LAW, §1310: Wages of a deceased county employee which remain unclaimed for six years may be transferred into the county's general fund. Alternatively, if the salary check remains unclaimed for two years, the county may obtain court order declaring it to be abandoned property pursuant to this section.

You ask about the disposition of an unclaimed paycheck of a deceased county employee who died intestate. According to your letter, the only known heir of the deceased employee is a sister, who has been advised of the unclaimed paycheck. You further informed us, however, that letters of administration authorizing the sister to receive the funds have not been presented to the county. You ask how the moneys should be disposed of under these circumstances.

Section 1310 of the Surrogate's Court Procedure Act (SCPA) authorizes the payment of certain debts owed to a decedent without administration. Under this statute, "debt" is defined to include "... earnings, wages, salary or bonus payable by an employer... to, or to the estate of, or to a beneficiary designated by, an employee..." (SCPA, §1310[1][a][v]), and the "money payable by a public corporation... to, or to the estate of, or to a beneficiary designated by, any natural person..." (SCPA, §1310[1][a][iv]). Clearly, then, wages or salary due to a deceased employee by a county are "debts" within the meaning of these statutory provisions.

Subdivision 3 of section 1310 of the SCPA authorizes a debtor, which is defined to include a government agency owing a "debt", to pay, upon submission of an affidavit, not more than $10,000 of a debt to certain enumerated relatives of the decedent, including a sister, or to a creditor or to a person who has paid or incurred the funeral expense of the decedent. Payment may not be made until at least thirty days after death, and may not be made if distribution of the moneys is otherwise provided for by designation of a beneficiary. The affidavit must show the date of death of the decedent, the relationship of the affiant to the decedent, that no fiduciary has qualified or been appointed, the names and addresses of the persons entitled to and who will receive the money paid, and that all payments made under this section by all debtors known to the affiant, after diligent inquiry, do not exceed $10,000 (SCPA, §1310[3]).

In addition, subdivision 4 of section 1310 authorizes a debtor, not less than six months after the death of a creditor unless otherwise provided by designation of a beneficiary, to pay, upon submission of an affidavit, up to $1,500 to a distributee or, to the extent that the funds are not exempt from claims of creditors, to a creditor or to a person who has paid or incurred the funeral expenses. The affidavit must show that the decedent was not survived by a spouse or minor child, that the affiant is entitled to payment, that no fiduciary has qualified or been appointed, the date of death of the decedent, and that the payment and all other payments under section 1310 by all debtors, known to the affiant, after diligent inquiry, do not exceed $1500.

Accordingly, upon receipt of an appropriate affidavit, the county may pay moneys due the deceased for salary pursuant to SCPA, §1310(3) or (4).  If an affidavit is not submitted to the county under these provisions, it is our opinion that the unclaimed property held by the county may be placed in the county's trust and agency fund for the benefit of the persons entitled thereto. After six years, the county generally may treat the funds as revenues and pay them into the general fund (see 1988 Opns St Comp No. 88-14, p 23). Alternatively, after holding the property for only two years, the county may turn such money over to the State Comptroller in accordance with a Supreme Court order obtained pursuant to Abandoned Property Law, §1310. Please note, however, that the county is not required to proceed under section 1310, and that the Comptroller must elect to receive the property under that section.

March 29, 1989
Francis Finnick, County Treasurer
County of Ontario