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Obtaining Death Declarations
for Missing Persons
By Irwin Scherago, Esq.
Cover Story: New York Law Journal
September 20, 2001
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."
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).
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.
Preliminary Letters
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).
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).
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.
A prayer for subsistence allowance, in accordance to the
standard to shich the family was accustomed upon the absentee's
disappearance, would most certainly be granted.
Conclusion
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.
The Surrogate's Court of New York will most likely 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
at the World Trade Center.
Author:
Irwin Scherago is a member of Meltzer, Lipper, Goldstein
& Schlissel, LLP, a law firm with offices in Mineola,
New York.
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