P R O B A T E & P R O P E R T Y
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P R O B A T E & P R O P E R T Y
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How to Help When a Mass Disaster Strikes— The New York 9/11 Experience
By Wallace L. Leinheardt
T he September 11, 2001 World Trade Center attack was a tremendous shock to all people. An even greater surprise was how, as a result of extraordinary efforts by the bar and bench, legal obstacles that might have been encountered by the families of victims were completely eliminated.
Following the tragedy, the immediate attention of the New York State Bar Association, the Association of the Bar of the City of New York, and the New York County Lawyers’ Association was directed to assisting lawyers and law firms in or around the WTC who were displaced or had their communications severed as a result of the attack. The New York State Bar Association’s President, Steven C. Krane, was an inspiration to all lawyers. His tireless efforts to help the families of lawyers who were killed, lawyers whose offices were destroyed or made uninhabitable, and law offices that lost telephone and postal communications for weeks, and to coordinate the efforts to reunite clients and their lawyers during the period following the attack, were exemplary. The staff of the New York State Bar Association also worked tirelessly to provide the necessary support for the volunteer attorneys.
The purpose of this article is to both inform attorneys about the New York experience and propose procedures to be used in other “mass disaster” situations.
As they watched the events at the World Trade Center the morning of September 11, 2001, it was apparent to a small number of attorneys that many victims would never be identified and that, in addition, there would be thousands of proceedings commenced in the metropolitan area Surrogate’s Courts for the individuals whose lives were lost. In particular, trust and estate practitioners familiar with Surrogate’s Court procedures needed to be involved to help families assess their legal needs and to complete the measures necessary in the minimum amount of time and with the least emotional cost. It was also apparent to a number of the attorneys that the remains of hundreds if not thousands of victims would never be recovered.
Section 2-1.7 of the New York Estates, Powers and Trusts Law (EPTL) permits the Surrogate’s Court to make a finding of death even though remains are never found. Originally known as the “Enoch Arden” statute, a person had to be absent for seven years before a proceeding could be commenced. As a result of amendment in 1993 the time of absence was shortened to a three-year period from the date that the person was last seen.
Following the crash of TWA Flight 800 in July 1996, the remains of sixteen passengers and one crew member whose names were on the manifest of those aboard the aircraft were never found. Nonetheless, based on that manifest, the Suffolk County Medical Examiner, on September 25, 1996, issued death certificates for those who had not been recovered.
In 2000, the New York Legislature amended EPTL § 2-1.7 to allow for a declaration of death by the court in less than three years if a person was exposed to a “specific peril.” It is worth remembering that, because there was always the fear that the statute would be abused by unscrupulous people to commit insurance or other fraud, the statute had built-in procedures to protect individuals and institutions against such fraud. For example, notice of absence had to be published in a paper of general circulation. In the New York metropolitan area, the cost of publication of such a notice is in excess of $1,000. In addition, because service by publication is deemed complete “on the 28th day after the first publication,” according to the Surrogate’s Court Procedure Act (SCPA) § 309.1(e), a court hearing could not be scheduled for at least six to eight weeks from when the citation was issued. The statute also requires that a guardian ad litem (GAL) be appointed to protect the interests of the absentee and to file a report.
In an effort to alleviate these problems, and to satisfy jurisdictional requirements, local Surrogates agreed that in cases arising from the World Trade Center disaster, they would be willing to waive publication of the notice and instead provide for service on a designated individual (a volunteer attorney). That attorney would then serve as guardian ad litem. The return date for a hearing would then be set approximately two weeks later. The judges also indicated that they would be willing to grant Letters of Temporary Administration under SCPA § 901 at the time of the initial application to the court. Such temporary powers would enable the proposed fiduciary to have access to the absentee’s funds and to take appropriate steps to protect the absentee’s assets.
Although the foregoing procedures would be of great assistance to the victim’s families, there was concern that without a death certificate insurance companies, IRA or 401(k) trustees and other financial institutions would not be willing to make payment of benefits. An effort was therefore made (which ultimately succeeded) to have the New York City Medical Examiner (whose office would be responsible for issuing death certificates for all those killed in the World Trade Center complex) to issue a death certificate on an expedited basis, relying on the same proof that would have been submitted to the court in an EPTL § 2-1.7 proceeding.
Forms were developed by the New York City Corporation Counsel’s office in collaboration with the Medical Examiner’s office that provided for an expedited procedure to obtain death certificates. The expedited death certificate procedure was not available, however, to everyone affected by the loss of a loved one at the World Trade Center. It did not cover out-of-wedlock relationships (unless homosexual partners had registered with the New York City Clerk, pursuant to Executive Law 123). It also did not cover a divorced parent of minor children who would otherwise be eligible to receive Letters of Administration after becoming guardian of the property of such infants. Another group not included was the next of kin of victims who were not regularly employed, but who might have been at the World Trade Center at the time the attack occurred. Nor could a nominated executor, who was not “next of kin,” make an expedited application. For the foregoing reasons, EPTL § 2-1.7 procedures were still necessary in a number of cases in which the expedited death certificate procedure was unavailable.
The expedited death certificate procedure did not in any way change the nature of a joint account, a Totten Trust account, a beneficiary under a life insurance policy, or an IRA designation. It merely facilitated the processing of a claim for such an account or benefit.
More than 1,600 applications for death certificates were processed by the NYC Corporation Counsel’s office. Initially, it is suspected that survivors were slow to apply because of an unwillingness to acknowledge that their loved ones had died.
By Executive Order No. 113.24, Governor Pataki suspended the statute of limitations. The Order also waived venue and jurisdiction requirements for World Trade Center victims’ Surrogate’s Court proceedings. Service of process was also waived, and the governor directed insurance companies licensed in New York State to make payments on their policies without a death certificate. When used in conjunction with the presumption of death proceeding, a proposed fiduciary could obtain immediate relief to manage the assets and deal with the liabilities of the absentee.
Local bar associations took steps to educate attorneys about both types of proceedings to simplify and shorten the time so that counsel could better serve their clients. The expedited death certificate procedure was promoted as the preferred procedure. Not only was it quicker, but it was less emotionally painful for the victim’s survivors, who were spared the trauma of having to repeat and relive, yet again, the details of their loss at a court proceeding.
Either way, the result would be to obtain a death certificate. The usual administration of an estate would follow, based on whether the person died with or without a will. Issuance of appropriate Letters of Administration or Probate were required in order to apply for the federal September 11 Victim Compensation Fund of 2001. Proof of authority to act on behalf of a victim has varied from charity to charity and employer to employer. Many organizations provided assistance to victims’ loved ones without regard to whether there was an estate representative.
When victims had wills that did not provide for distribution of his or her estate in accordance with the New York law of intestacy, conflicts arose. Under New York law, either distributees or nominated executors are persons who may commence appropriate proceedings for wrongful deaths and pain and suffering.
All of the Chief Clerks in the Surrogate’s Courts in the metropolitan area adopted special handling procedures to provide same-day issuance of Temporary Letters to enable victims’ families to avoid financial losses resulting from an inability to access the absentee’s accounts. Samples of the latest forms and procedures adopted by the NYC Medical Examiner’s Office and the Surrogate’s Courts were made available at the New York State Bar Association web site ( nysba.org).
Early on, contact was made with Capsoft, a subsidiary of Matthew Bender, which publishes the HotDocs software program, to enlist its assistance in automating whatever forms might be required. Before 9/11, the New York State Bar partnered with HotDocs in automating the “official” New York Office of Court Administration Surrogate’s Forms. These forms were available and were in fact used for applications concerning the World Trade Center cases. In addition, a free copy of the New York State Bar Association/HotDocs Surrogate’s Court Forms document assembly program was provided to firms, bar associations, and Surrogate’s Courts providing pro bono services to the families of victims.
For proceedings to declare a person deceased, however, no uniform forms had been adopted. Proposed forms were created and submitted to the Clerks of the Surrogate’s Courts in the metropolitan area for their consideration. HotDocs posted the forms on its web site, enabling attorneys to download and assemble the forms, without charge, with the assurance that the forms represented the state bar models.
After the Medical Examiner’s office adopted forms for the expedited death certificate procedure, the forms were put online and once again could be downloaded, without charge, and assembled by attorneys everywhere. This eliminated the need for a visit to the Crisis Center in Manhattan. It also enabled attorneys everywhere to assist clients in filling out the forms in the privacy and comfort of their attorney’s office.
Volunteer Attorneys, Bar Associations, and the Courts Respond
One of the most important positive results of the 9/11 tragedy was the outpouring of volunteer attorneys. Initially this author posted a notice on the New York State Bar Association Elder Law Section Listserv. The notice was posted on Saturday, and, by Sunday night, numerous attorneys from around the state and country volunteered their services. Indeed, when the first training session for volunteer attorneys was held at the Association of the Bar of the City of New York, hundreds of attorneys were turned away because the 500-person auditorium was filled to overflowing. Attorneys gave freely of their time and advice at the official Crisis Center set up by the City of New York.
In addition, the New York County Lawyers, the Association of the Bar of the City of New York, the Queens County Bar, Nassau County Bar, Kings County Bar, Suffolk County Bar, and other bar groups arranged for and publicized the availability of their members to meet with families who lost their loved ones to represent them in obtaining death certificates and to advise them on the necessary proceedings thereafter. (All lawyers who volunteered agreed to do so with the understanding that in no event would they subsequently represent the client in any other proceeding for which a fee would be required.) It has been reported that the number of lawyer volunteers substantially outnumbered the victim survivors seeking legal advice. Many lawyers agreed to represent the families of rescue workers and victims without charge for whatever services were necessary in administering the estates.
The activities of the New York State Bar Association and others clearly demonstrated that the concerns of bar associations were not limited only to assisting lawyers who were displaced as a result of the September 11 attack. Concern for the welfare of survivors quickly became the prime motivating force of bar association activities. All lawyers should be very proud of the profession’s response to this tragedy.
The New York courts’ response was immediate and effective. Special clerks were designated in Surrogate’s Courts and assigned to handle World Trade Center cases. The governor issued executive orders that suspended statutes of limitations and waived filing fees and venue requirements in Surrogate’s Courts. All cases submitted in the Surrogate’s Court were “fast-tracked” so as to minimize emotional and financial consequences as much as possible. In addition to cases in New York, a substantial number of cases were filed in New Jersey and in other states and countries for people who lost their lives at the World Trade Center area on September 11.
In New York, many individual attorneys and firms gave freely of their time and advice, often sharing the emotional burden of the friends and families of the victims who were missing and loved. Many local bar associations established pro bono programs to provide totally free assistance to the families of police, fire, and rescue workers. Pro bono attorneys were also made available to military reservists called to active duty to assist in preparation of wills or to advise the reservists about employment issues.
The conduct and activities of the volunteer members of the bar were extraordinary. Their response demonstrated great compassion, dedication, and professionalism in a time of public and private need. The legal profession should be proud.
Lessons from the Aftermath
State and local bar associations are well advised to consider and adopt their own mass disaster plans. Although the cause of the 9/11 tragedy was man-made, any natural disaster resulting in the sudden loss of thousands of lives would drastically affect and potentially overwhelm the legal system.
All bar associations should have special committees to deal with mass disaster responses, not only from the perspective of a displaced lawyer, but from the standpoint of missing or killed members of the public. Bar leaders should consider these recommendations:
1. State laws should be reviewed to confirm that existing law is sufficient to permit appropriate proceedings for declaration of death as a result of a mass disaster.
2. Appropriate courts should adopt expedited procedures to deal with mass disaster situations, such as the World Trade Center tragedy.
3. State bar associations should function as coordinators to assist local bar associations in communicating with the public and with other state bar associations.
4. State bar associations should also have plans in place to coordinate with local bar associations to provide information on their web sites and in conjunction with software publishers such as HotDocs to make generic forms available.
5. State bar associations that usually have the ability to communicate by e-mail or on an instant fax basis with a greater number of lawyers, particularly in their trust and estates sections, should coordinate volunteers.
6. Local bar associations should create mass disaster committees to identify and work with local charitable organizations to coordinate activities and services for those in need.
7. Bar associations should have experienced volunteers ready and available to train other attorneys in the “basics” of estate administration procedure.
State bar associations can assist the public by developing “frequently asked questions (FAQs)” (similar to those posted at the NYSBA web site) designed to address public concerns about estate administration. Basic information should include the names, addresses, and telephone numbers of all of the surrogate’s courts (or their equivalents) in each county, including the names of the surrogate and chief clerk, as well as the names, addresses, and telephone numbers of the local bar associations and their pro bono directors. Information sheets should be prepared and made available for publication via the local media.
Bar associations also should develop a survivors and family assistance project to assist the families of victims of tragedies to ensure that:
1. Forms will be distributed through bar association web sites to facilitate the appointment of temporary administrators in appropriate cases in which a death certificate has not or cannot be issued. These forms should include (a) a checklist, (b) a petition, (c) waiver, and (d) a proposed decree (if necessary). These forms should have been previously circulated among, and approved by, surrogate’s courts in the area to assure that the forms are complete and acceptable to the clerks. Copies of the forms should be made available at courts for use by pro se applicants.
2. Groups of volunteer lawyers will be formed in each county to assist families in these proceedings.
3. Volunteer attorneys will be available to conduct clinics and man tables at crisis centers or meetings for families of victims.
4. Lists of qualified, court-approved volunteer attorneys will be provided to the surrogates to act as pro bono guardians ad litem in appropriate cases.
5. Trusts and estates sections will make available a sample guardian ad litem report for use by the GALs in these types of proceedings.
6. Volunteer lawyers will be available to answer follow-up questions from the bar association web site’s “Frequently Asked Questions” page.
Training sessions should be conducted for pro bono, general practice, and other interested committees on declaration of death procedures.
Other project suggestions can be considered. This author recently received a proposal from one of his bar association’s members that attorneys volunteer to “adopt” a family of a deceased police, fire, or other emergency rescue member, and handle their Surrogate-related legal affairs on a pro bono basis.
The activities detailed in this article are those of only one of the thousands of lawyers who provided pro bono services following September 11. The full extent of all of the efforts and services provided by volunteer attorneys will never be fully known. In the opinion of this author, it was the bar’s “finest hour.”
Wallace L. Leinheardt is a partner in the Garden City, New York offices of Jaspan Schlesinger Hoffman LLP.