By: Irwin Scherago ischerago@mlg.com

More than 5,000 individuals may have lost their lives in the Twin Towers/World Trade Center tragedy of September 11th. The information in this article may be of aid to individuals who have just lost, or apparently lost, loved ones in the World Trade Center and Pentagon tragedies. This is addressed to survivors who will find themselves in financial need due to the unexpected disappearance of their breadwinner.

When an individual disappears, all the activities that he or she was involved in go on hold until it can be determined, with proof, some of which may be circumstantial, that the individual who is missing will not reappear.

The normal statutory term of years before an absentee (missing individual will be declared to be deceased is three years. Thus, a missing individual's family, nearest next of kin, and named beneficiaries, normally cannot proceed to conclude the absentee's business, receive a pension death benefit and/or collect upon policies of life insurance until at least three years. The New York statute, Estates, Powers, and Trusts Law, Section 2-1.7 provides as follows:

"A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained, shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced."

There are many thousands of individuals who may have lost dear ones in the terrorist tragedies. If the normal provision of a three-year wait would prevail, the loved ones and/or beneficiaries of the missing person would have to wait that period before receiving pension death benefits, life insurance proceeds or other financial emoluments and may suffer great financial hardship while waiting.

Families of a missing person, known to have been in peril, will not have to wait the statutory three-year period to have the absentee declared a deceased person. Section 2-1.7(b) of the Estates, Powers, and Trusts Law ("EPTL") provides that if a "person was exposed to a specific peril of death (it) may be a sufficient bases for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced."

Declaration of Death Made Where Missing Person is in Known Peril

In re: Bevort's Will, 73 N.Y.S. 2nd 216, an individual rented a yawl and sailed into the Atlantic. The yawl was last seen by a ship which sighted the yawl 900 to 1,000 miles east of Boston. A signal for help had been received during a storm and, subsequently, the vessel was found destroyed. It was held that Victor Bevort was deemed to have died on December 15, 1937, the date of the catastrophic accident (the storm).

In re Podkowi's Estate (114 N.Y.S. 2ND, 1952), an indiviudal of the Jewish faith who resided in Lithuania had not been heard from subsequent to 1939. The Court took judicial notice of the fate of persons of Jewish extraction residing in Lithuania between 1939 and 1945. It was held that Julius Podkowik was deceased. The Court stated "it is an understatement to assert that Jews in Lithuania during the period in question were in moral peril." Letters of Administration were given to the Petitioners, survivors of the decedent.

Similarly, a husband left his wife in the morning at 9:00 a.m. During the day, the individual's house burned to the ground. There was no trace of the petitioner's wife except for some small bones found in the debris to which flesh was attached. The Court held that Carol I. Bobrow was deceased as of the date of the fire, the date of the known peril, March 25, 1958 (In re Bobrow's Estate, 1958, 179 N.Y.S.2nd 742).

As I stated at the outset of this brief article, the general rule that death is presumed to occur at the end of an unexplained absence of three years does not apply where an absentee met his or her death in a catastrophe or perilous occurrence and in such case the death is presumed to have occurred on the date of the catastrophe or perilous occurrence (In re Zucker's Will, 219 N.Y.S. 2nd at page 72, 1961).

An absentee (missing person) who was a passenger on a private airplane flying from South Caicos Island, Bahamas to Florida. The plane left the Bahamas. Neither the plane, nor the pilot, nor the absentee had been heard from since the date of flight (January 12, 1980). No plane wreckage had been found. It was determined that the decedent perished in the plane accident and rights to alimony, pursuant to a Judgment of Divorce, would cease and terminate as of the date of the accident, which is also presumed to be the date of the decedent's death (In re Chiaramonte v. Chiaramonte, 435 N.Y.S. 2nd 1981).

Surrogate's Court Working To Accelerate Procedure

Please note, the disappearance in re Chiaramonte was January 12, 1980 and the Court decision was January 20, 1981, slightly more than one year to determine that the absentee was deceased. In light of the tragedies on September 11, 2001, the Surrogate's Courts in the New York metropolitan area are currently at work on procedures to accelerate the declaration of death of a missing person in a known peril.

What Happens to an Absentee's Estate Before A Final Declaration?

The named Executor in the Will of a missing person may petition for Preliminary Letters Testamentary pursuant to Section 1412 of the State's Surrogate's Court Procedures Act of New York State. If the missing person does not have a Will, then the procedure is to petition for Letters of Administration under Section 1612 of the SCPA. This is a rapid proceeding.

The petition for Preliminary Letters would set forth the basic facts surrounding the disappearance of the absentee and among the recitations would be that: the absentee was employed by the XYZ Company; the absentee's normal place of business was at 1 or 2 World Trade Center; the floor upon which the absentee worked; the absentee went to work on September 11, 2001; and that the absentee has not been heard from since the morning of September 11, 2001; and that it is believed that the absentee perished in the destruction of the World Trade Center.

The petition will conclude with a prayer that Preliminary Letters Testamentary be issued to the named Executor (or Administrator if there is no Will).

What Happens Once Preliminary Letters are Issued?

Once Preliminary Letters have been issued to the named Executor, the Executor can mashal the assets of an alleged decedent (absentee), pay the debts of the alleged decedent, and manage the property of the absentee as if the absentee were deceased. However, the Temporary (Preliminary) Executor or Administrator cannot distribute the assets of the alleged decedent to his or her beneficiaries until the final determination and declaration of death has been made pursuant to the Estates, Powers, and Trusts Law Section 2-1.7 or 2-1.7(b).

If Assets of Absentee Cannot Be Distributed To Beneficiaries Can an Allowance Be Made to the Absentee's Family?

Every petition for Preliminary Letters Testamentary (or Administration if there is no Will of the Absentee) should request an allowance for periodic payments to be made to the absentee's wife, children, or other dependents. This prayer for an allowance should be accompanied by Exhibits including: the absentee's last income tax return (which would reflect spouse, issue, and other dependents); absentee's pay stubs, if possible, and a Schedule of normal recurring living expenses for the absentee and his family in affidavit form. This information to permit a Court to make an allowance must be in affidavit form, sworn to before a Notary Public.

It is this writer's view that a prayer for a subsistence allowance, in accordance to the standard to which the family was accustomed upon the absentee's disappearance, would be granted.

This article, as aforesaid, is written with heavy heart, but with the hope that it will provide some guidance to thousands of individuals who are the survivors of missing persons and whose rights depend upon the swift declaration that the absentee, their loved one, is already deceased thereby triggering provisions: in stockholder's and/or partner's buy-sell agreements; receive pension death benefits; to receive life insurance proceeds; and other contractual rights that the surviving individuals of the known absentee, who was in an area of peril, are entitled to receive without having to wait three years. This writer believes the Surrogate's Court of New York will publish an accelerated procedure in a brief period of time as to the manner of proof necessary for the declaration of death of a missing person last known to be in an area of peril.