By: Irwin Scherago ischerago@mlg.com

More than 5,000 people are unaccounted for in the Twin Towers tragedy of September 11, 2001. In the aftermath of all that has happened, families and domestic partners, in addition to struggling to find their loved ones, are struggling financially. In order to survive financially, the families have to obtain access to the assets of the missing person.

Meltzer Lippe has been at the forefront of aiding the families of victims in preparing the necessary applications and affidavits in support of a petition for a death certificate. The attorneys at Meltzer Lippe continue to offer their services to the families of the numerous missing victims on a pro bono basis through the Nassau County Bar Association.

In order to access an individual's assets, the individual must be declared to be dead. In the normal course of events, a missing person will not be declared to be dead for a period of three years. The exception to the normal rule is when a person is known to have been in an area of known peril and has not been heard from since the time of the peril (the catastrophe). In this circumstance, the missing person is to be declared deceased and a death certificate will be issued.

An accelerated procedure to obtain death certificates for missing persons has been developed. The procedure involves making an application for a death certificate and this application may be made by a spouse, parent, child, or sibling. The application will be supported by an affidavit and the affidavit will set forth facts entitling the applicant to the death certificate for the missing person.

For each missing person the following information must be included in this application and in the affidavit in support of the application:

1. The name, address, and social security number of the missing person.

2. A statement of where the missing person was employed.

3. Letter or affidavit from the employer of the missing person, if possible.

4. If a letter from the employer is not possible, then the use of pay stubs, or W-2s for the year 2000 income tax returns, and any other documents which would support the missing person's place of employment.

5. A statement as to how long the person has been missing, when the person was last heard from, and why the family believes that their missing relative may be deceased.

These documents will be sent to the Corporation Counsel's Office in New York City for review and then submitted to the Supreme Court of the County of New York for a declaration of death. Once this declaration is made, the Court will forward the order to the Office of the Medical Examiner which will issue all death certificates. This procedure may take up to two weeks.

In the interim, before a declaration of death has been made, individuals who are on joint accounts with a missing person should be able to access the account because either joint tenant has the right to withdraw monies from a joint account (checking and/or savings) during their lifetimes. In addition, if there is an existing Durable Power of Attorney, the holder of the power, the agent, may use that Power to obtain funds from a missing person's brokerage account. There may be monetary limitations that a stock broker will put on the amount to be withdrawn by the use of the Power, however, it is another avenue for the family of a missing person to access funds before the declaration of death. The families of a missing person should also look to closely held business entities, such as partnerships or corporations, in which the families were partners or co-stockholders with the missing person, as a source of funds before a declaration of death has been finalized.

There is a possibility that a declaration of death may not be immediately granted because of insufficient proofs. If this is the case, then there would have to be a petition for Temporary Letters of Administration of an absentee. In the Petition for Temporary Letters of Administration, the petitioner should request a living allowance. Requests for an allowance is to permit the missing person's monies to be accessed to enable the family to survive financially until a final determination is made that the missing person is deceased.

In light of the tragedies on September 11, 2001, the Surrogate's Courts in the greater New York metropolitan area (New Jersey and Connecticut included) have all developed procedures to accelerate the declaration of death of a missing person.

For more information or any questions you may have, you may Email ischerago@mlg.com or visit our website at www.mlg.com.