New Procedure to Streamline Death Certificates Established

By Daniel Wise
New York Law Journal
September 26, 2001

The Giuliani Administration and the court system have worked out a new procedure to expedite the issuance of death certificates to the relatives of the 6,453 persons missing in the attack on the World Trade Center.

Now, a declaratory judgment action will be filed in State Supreme Court in Manhattan to determine that the missing person perished in the disaster. Initially, the two Surrogates in Manhattan -- Eve Preminger and Renee R. Roth -- will be designated acting Supreme Court justices to process the requests.

The goal is to issue orders authorizing the New York City Medical Examiner's Office to issue death certificates within one day of the filing of the request for declaratory judgment absent complicating factors, Chief Administrative Judge Jonathan Lippman said yesterday.

There is no shortage of lawyers waiting to help survivors get proceedings under way. According to Michael Miller, president-elect of the New York County Lawyers' Association, more than 500 lawyers had signed up for a training session last night at the Association of the Bar of the City of New York to learn how to assist survivors in assembling the necessary legal documentation.

Starting this morning, teams of 40 volunteer lawyers will head to Pier 94 on West 55th Street, where the center set up by the city to aid victims' families is located. The plan is to have two teams a day -- a total of 80 lawyers -- working in five-hour shifts to assist family members, Mr. Miller said.

Criminal Justice Coordinator Stephen Fishner, one of the city officials who fashioned the new procedure, praised the turnout of lawyer volunteers as "a very wonderful gesture that has played a big part in bringing the city back."

Depending upon the volume, Judge Lippman said, additional Supreme Court justices would be assigned to handle requests to have persons missing in the disaster declared dead.

The speedy availability of death certificates should aid victims' families in getting quick access to bank accounts, insurance proceeds, pension benefits and other assets, said Arlene Harris, of Kaye Scholer, who was a former chief court attorney at the Surrogate's Court in Manhattan for 14 years.

Until a year ago, Ms. Harris explained, a family of a missing person had to wait three years before applying to have the person declared dead. But, she explained, in August 2000 the Estates, Powers and Trusts Law was amended in 2-1.7 to waive the three-year period where the missing person was exposed to "a specific peril of death."

Even with the amendment, Ms. Harris said, the practice of most surrogates was to hold a hearing before declaring a missing person dead, a process that "at a minimum would take several months." In addition, Mr. Miller added, that the estates law required the appointment of a guardian ad litem to represent the interests of missing heirs.

Supreme Court justices hearing applications under the new law retain the power, if appropriate, to order a fact-finding hearing or the appointment of a guardian ad litem, Judge Lippman said. But, he added, the "emphasis under the new procedure is to determine whether a person missing in the World Trade Center disaster is dead, and not to take people in extremis and require all sorts of documentation."

The rapid availability of death certificates will also enable family members to get quicker access to the victim's estate, said Irwin Scherago, a trusts and estates expert at Meltzer, Lippe, Goldstein & Schlissel in Mineola. With a death certificate, most courts will authorize a family member to take control of the victim's assets within a week or two, Mr. Scherago said.

Even without the new procedure, Mr. Scherago said, the Surrogate Court had the authority to allow families to apply for temporary orders allowing families to tap estate funds to maintain their standard of living, but those procedures were cumbersome, time-consuming and complex.

Governor Pataki on Monday also issued an executive order that will make it easier for families of victims to get access to missing persons' assets. The order allows relatives of missing persons to file an affidavit to gain access to the proceeds of life insurance policies and Workers' Compensation benefits. The order also allowed victims' spouses to withdraw up to $ 15,000 from their bank accounts based upon the affidavit, which is required to specify that the person disappeared in the attack on the World Trade Center.

The Governor's order also waived any filing fees and publication requirements relating to court proceedings started by relatives of persons who vanished in the attack.

Under the procedures released by city officials yesterday, the Corporation Counsel's Office will be responsible for filing declaratory judgment actions based upon the legal papers families compile with the help of the volunteer lawyers.

The declaratory judgment actions will actually be brought by the Chief Medical Examiner, Dr. Charles S. Hirsch, Judge Lippman said.

In most instance, city officials said, it is expected that death certificates will be routinely issued to persons who worked in the two collapsed towers or were on the two planes that crashed into them. Similarly, they said, it is anticipated that death certificates will be routinely issued to emergency workers who vanished after rushing to the World Trade Center to aid victims of the attack.

The procedure contemplates the filing of two affidavits, one from the victim's next of kin and one from the victim's employer, to confirm the circumstances of the victims' likely death. Next of kin includes a victim's spouse, registered domestic partner, children and grandchildren over the age of 18.