A tragic trend that is becoming more and more common is that a 9/11responder or survivor (an area resident, worker, or student) dies before their September 11th Victim Compensation Fund (VCF) is decided. At this point, the family of the 9/11 victim needs answers to many questions: Does the 9/11 VCF claim continue? Is the family entitled to additional compensation? What if the deceased victim had a will or trust? Does the family need to go to the Surrogate’s Court? Read on for more information.
A 9/11 Attorney Can Help
If your loved one died while his or her VCF claim was being processed, eligible survivors may qualify to receive that compensation. However, there are some steps that individuals must take to receive compensation.
A 9/11 attorney with experience in helping clients with the VCF claims process can ensure that you complete these steps precisely and promptly, so that you and your family members do not miss out on available funds to pay for your loved one’s expenses and the suffering that he or she endured as the result of a 9/11-related illness.
The experienced 9/11 lawyers at Hansen and Rosasco can help. We have experience successfully handling 9/11-related claims. Contact us for a free case evaluation.
The Claim Gets Placed on Hold
If someone dies after filing a VCF claim and while the VCF is processing the claim, the VCF will immediately place the claim on hold, pending the naming of a personal representative and validation of that representative by the VCF. The VCF requires that the deceased victim’s family file a petition with the State Surrogate to have the proper person appointed to act on behalf of the Estate of the deceased 9/11 victim. If the victim had a will, then the family must file a probate proceeding and the will probated and the executor (or executors) named in the will appointed by the Surrogate’s Court. If the deceased victim did not have a will (died intestate), then the family must file an administration proceeding and the Surrogate’s Court will appoint the proper representative under the intestacy laws of the state where the deceased last lived when he or she passed. This eliminates confusion and to avoid incorrect actions being taken on the claim.
Once the VCF has learned that the claimant has passed away, the VCF will send a letter to the claimant’s last known address explaining the status of the claim and the steps that need to be taken to keep the case viable.
The steps you need to take depend on the circumstances of the claimant’s death, as explained below:
- If the victim dies as a result of a 9/11-related medical condition and has already received payment, the VCF will determine whether to award any additional compensation by calculating the loss for the deceased victim and deducting the award that was already made for the claim. The VCF will also recalculate all of the components of loss that were included in the victim’s claim and review any amendments that the claimant had submitted to his or her claim before death. If the total loss for the decedent’s claim does not exceed the amount already paid on the claim, the VCF will not issue any additional funds. To prove that your loved one died of a 9/11-related illness, as required by VCF policies for eligibility purposes, you must submit a death certificate plus, in many cases, other forms of evidentiary medical proof that supports the link between the 9/11 condition and the cause of death. Most death certificates have three separate areas where the cause of death is listed: an area where the immediate cause of death is located, an area where underlying factors are located, and an area where significant conditions contributing to death are listed.
- If the VCF has not yet paid out a claim at the time of the victim’s death, the VCF will stop consideration of the claim and inform the named personal representative (as appointed by the Surrogate’s Court) of where the claim was in the consideration process and what steps need to be taken going forward.
- If the victim died as a result of something other than his or her 9/11-related medical conditions, you will need to file a personal representative amendment to the claim.
- If the victim’s death is attributed to his or her 9/11-related condition, you should file a new deceased claim.
- Individuals should not file a personal amendment to the deceased’s claim if they are also filing a new deceased claim. Personal representatives must commit to one process or another, choosing the one that is applicable based on the information contained on the death certificate.
Identifying the Authorized Personal Representative
Regardless of the cause of death, only a court-appointed personal representative can file claims on behalf of the decedent’s claim. As mentioned above, the state Surrogate’s Court generally appoints the personal representative, and this appointment defines the authority of the personal representative to take actions on behalf of the decedent’s estate. It’s important to note that each state has its own guidelines for appointing a personal representative. You can learn more about the requirements in your state by consulting with your attorney.
You must submit the authorization from the Surrogate’s Court (often called Letters Testamentary or Letters of Administration) that proves your authority to act on behalf of the deceased’s estate to the VCF along with an original or certified copy of the death certificate (and often other medical proof) proving that the death was caused or contributed to by a 9/11-related illness. If you do not wish to file a wrongful death claim, you should state on the claim form that the death was not caused by a 9/11-related illness. If you mark “I don’t know” on the claim form as to the answer of the cause of death, you must provide a written statement that you are not claiming that the death was related to an associated condition and that you do not wish to file a wrongful death claim.
If you can’t obtain a court appointment as the personal representative of the deceased’s estate, you can ask the fund’s Special Master to appoint you as the personal representative to file the claim. The Special Master will make such an appointment and proceed in this manner in very limited circumstances. Your documentation to the Special Master must prove your relationship to the deceased as well as a statement as to why you can’t receive a court appointment.
If the court-appointed multiple personal representatives of the estate, each representative must submit the proper documentation proving their appointments, and they all must sign the same copy of each required form.
Filing a New Wrongful Death Claim
The VCF must receive certain documentation before it can conduct a preliminary review of a wrongful death claim.
This required documentation, which we can help you compile for the VCF, includes:
- An original or certified copy of the court order or letter of administration that appoints a personal representative for the deceased’s estate.
- An original or certified long-form copy of the deceased’s death certificate that shows the cause of death. It’s important to note that short-form death certificates usually do not list a cause of death.
- A VCF claim form signature page, signed by all of the deceased’s personal representatives.
- Authorization for the release of the deceased’s medical records so that the VCF can obtain information from the WTC Health Program regarding the deceased’s medical conditions that were certified for treatment.
- If you are not represented by an attorney or if you and your attorney have decided that you will receive the payment, you will need to provide your direct deposit information.
- If you are represented by an attorney, and you and your attorney have decided that the attorney should receive the payment, you must sign a document authorizing payment of the award to the attorney’s bank account.
- Proof of presence at a 9/11-related site. If you were a member of a New York City agency, such as NYPD or FDNY, the VCF will obtain this information directly from that agency. Otherwise, you must submit documentation showing your presence in the exposure zone between September 11, 2001, and May 30, 2002. Some documentation that individuals may as proof includes a sworn employer verification form, proof of residence in an affected area during the eligible period, school or daycare records that indicate your presence in the affected area during the relevant time, or any contemporaneous document, such as orders, instructions, a list of tasks completed, or other items that show your presence at the site.
- Either certification from the WTC Health Program for an eligible condition or documentation from a private physician that proves an eligible medical condition.
- While non-economic losses are generally awarded via a flat amount of $250,000, if you are seeking an award for a dependent who was over 18 at the time of the victim’s death, you must also submit that individual’s tax returns for the year before his or her death.
- Information verifying whether the victim had a life insurance policy.
Calculation of a Deceased Claim
There are certain considerations that individuals must make when filing a wrongful death claim on behalf of a victim’s estate that can impact the computation of the award.
These considerations include:
- The calculation of economic loss. The VCF applies a consumption factor to the calculation of future lost earnings that reflects the decedent’s share of household expenditures that often lowers the amount awarded for loss of future income. It’s important to note that the loss of pension benefits that terminated upon the decedent’s death are not compensable by the VCF.
- In some cases, when a first responder’s employer has not designated the individual’s death as a death that occurred in the line of duty because he or she was not officially deployed to the response effort, the Special Master can choose to award a flat $250,000 for economic loss.
- The VCF does not use a residual earnings deduction when calculating the loss of future income of a person who died of an eligible condition. If future lost earnings were awarded for a partial loss, the amount that individuals may receive for loss of future income in a deceased claim will likely be larger than the amount awarded through a claim.
- If the decedent was disabled before death as the result of a non-eligible condition, the calculation of the award can be reduced to reflect that a portion of the earnings loss was related to the non-eligible disability.
- Replacement services are sometimes awarded in wrongful death claims, even if denied in the claim.
- Non-economic losses are generally larger than the economic losses in a wrongful death VCF claim because there is often an additional award for the wrongful death claim plus any spouse or dependents. The wrongful death award is usually a flat amount of $250,000 plus an additional $100,000 for the decedent’s spouse and each dependent.
- Funeral or burial expenses are awarded if the other requirements are met, up to a limit of $20,000.
When an award is approved for payment in a wrongful death VCF claim, the VCF will directly deposit the money into the account of the trust account for the attorney for the Estate/personal representative. Disbursement of the funds to the deceased’s beneficiaries must be done under the terms of the decedent’s will or the applicable state law where the personal representative and/or the beneficiaries live. In many cases, a detailed petition and accounting must be filed with the state Surrogate’s Court requesting that the Court issue an order and decree detailing the distribution of the VCF award.
If a portion of the compensation is intended for minor children, the personal representative will likely need to submit additional documentation and be required to adhere to regulations pertaining to the distribution of funds to minors.
Individuals continue to receive diagnoses of serious illnesses related to 9/11. If your loved one died of a 9/11-related illness, let Hansen & Rosasco help you with your wrongful death VCF claim. Contact us for more information.