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New Jersey county surrogates are working with state court officials to streamline probate rules so that families of New Jersey residents missing after the destruction of the World Trade Center will not have to wait years to settle their estates. By court rule, a person normally must be missing for at least five years before a surrogate can declare him or her dead and begin the process of settling the estate. Statutes governing the Superior Court provide that a trial judge will not declare a person dead unless he or she has been missing for seven years. But most of those missing in the wake of the destruction of the World Trade Center will likely not be found or identified. Officials directing the search and rescue efforts say many bodies disintegrated or were incinerated in the inferno or in the ensuing collapse of the towers. As of Friday afternoon, the New Jersey State Police listed 455 New Jersey residents as missing, while New York City officials reported a total of 6,333 people, including foreign nationals. Middlesex County Surrogate Kevin Hoagland, the surrogates’ section chief of the Constitutional Officers Association of New Jersey, says that rules and case law provide surrogates with enough leeway to obviate the need for rule changes or new statutes. “After reviewing the Rules of Court and case law, we believe the applicable rules and cases allow us to go ahead and move forward and begin processing any claims,” says Hoagland. He says the group will meet with court officials today. Winnie Comfort, a spokeswoman for the Administrative Office of the Courts, says the New Jersey Supreme Court will do what is necessary to settle estates quickly. “Our objective is to eliminate as many roadblocks as possible,” says Comfort. “The court will do whatever it believes needs to be done so that these survivors are not facing years of delay before estates can be settled.” Burlington County Deputy Surrogate Linda Cushing says some families may not be able to obtain a death certificate — traditionally the most expeditious means of moving to settle an estate — because there is no body. Rather, the families must ask their county surrogate or a Superior Court judge to issue a declaration of death. Surrogates generally follow R. 4:80-1 et seq., which in most circumstances requires a five-year wait before such a declaration is made. The statute followed by most judges is N.J.S.A. 3B:27-1 et seq., which calls for a seven-year wait. But Hoagland and Cushing say there is language in the rule and the statute that makes it possible to reduce that time frame. Cushing points to R. 4:80-1(b), which says in part that any application for a declaration of death “shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with … .” Says Cushing, “That last portion is the key.” Rules are traditionally relaxed in disasters such as airplane crashes, where there may be no identifiable bodies, she says. For example, a surrogate will accept as an acceptable form of proof any report issued by the U.S. Coast Guard or the Federal Aviation Administration attesting to the fact that while there was a crash, no bodies could be recovered. If there is proof that a particular person was on the flight, surrogates will not hold that person’s family to the five-year requirement. In the World Trade Center catastrophe, Cushing says, affidavits from surviving witnesses that a person was in the building at the time may be considered acceptable, as well as corporate documents stating that a person was in one of the buildings at the time and is still missing. The Appellate Division also ruled in 1971 that the seven-year requirement in the statute can be waived in certain circumstances. In the notes to N.J.S.A. 3B:27-1, the statute says, “Law generally presumes continuation of life until seven years have elapsed since the person has last been heard from.” But the Appellate Division ruled in DeSena v. Prudential Insurance Co. of America, 117 N.J. Super. 235 (1971), that if proofs of circumstances raise a counterpresumption of the person being alive, a person may be declared dead within the seven-year period. The notes to the statute go on to say: “The death of an absent person may be presumed before expiration of seven years, where in connection it appears that within that period he encountered some special peril or came within range of some imminent danger which might reasonably be expected to destroy life.” Cushing says, though, she does not believe that families who lost relatives at the World Trade Center need to go to the Superior Court to have their relatives declared dead. “That’s a time-consuming process, and you have the added expense of having to hire a lawyer,” she says. “What the surrogates are going to try to do is expedite the process as much as possible and make it less burdensome.” Adds Hoagland: “The last thing we want to do is make these people wait five years. They’ve suffered enough without having to deal with a massive bureaucracy or red tape.” In New York, Chief Administrative Judge Jonathan Lippman says the judiciary is working with the executive and judicial branches to develop procedures to allow relatives of those missing in the World Trade Center to get access to funds as quickly as possible. Under normal circumstances, it can take families of people missing and presumed dead in New York as long as three years to process their estates before they can get access to the missing person’s property. Lippman says the Office of Court Administration has provided Surrogate’s Courts throughout the city with forms to speed the process for relatives of missing people seeking temporary letters of administration and appointments as guardians. Lippman adds that court officials are working with the governor’s office, legislative leaders, the Medical Examiner’s Office and other city agencies on measures to streamline the processing of the estates of people missing in the disaster.

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