Section 6: Deceased Victims

If you are filing a claim on behalf of a deceased individual, you need to:

1. Be appointed as the victim’s Personal Representative, and
2. File Appendix A to the claim form.

 

6.1  Victims who pass away after Filing a Personal Injury Claim 

If a victim started or submitted a personal injury claim and then passed away, the next steps on the claim will depend on: (1) whether the victim died of causes related to his or her 9/11-related eligible condition or died of unrelated causes; and (2) the status of the personal injury claim at the time the VCF is notified of the death.  If the victim died of causes unrelated to 9/11, you should file a Personal Representative amendment to the personal injury claim.  If the victim’s death is believed to have been caused by an eligible 9/11-related condition, or if you are unsure if the death was caused by an eligible condition, you should register a new deceased claim.  It is critical to the proper handling of the claim that you take one action or the other, but not both.

Follow the instructions in “Information and Instructions – Steps to take if a Personal Injury Claimant passes away after filing a Claim” based on the specific circumstances of the claim.

If a victim passes away as a result of his or her 9/11-related eligible condition after having received payment on a personal injury claim, the VCF will consider whether any additional compensation should be awarded in the deceased claim by calculating the loss for the deceased claim and deducting the award already paid in the personal injury claim. In calculating the loss for the deceased claim, the VCF will recalculate all components of loss that were compensated in the personal injury claim, and will also review any amendments filed on the personal injury claim prior to the decedent’s death for which a decision had not yet been issued.  Thus, if lost earnings were compensated in the personal injury claim, they will be recalculated in the deceased claim to take into account the considerations and assumptions discussed in Section 6.2.a) below.  

The VCF will issue an award determination for the deceased claim equal to the amount by which the total computation for the deceased claim (including all applicable components of personal injury loss) exceeds the total amount already paid in the personal injury claim. If the total loss determined for the deceased claim (including all applicable components of PI loss) does not exceed the amount already paid in the personal injury claim, the deceased claim will be valued at zero and no additional award amount will be issued.  In such a case, the VCF will not take any action with respect to the personal injury award that was already paid.

These guidelines apply only when the victim died as a result of a 9/11-related VCF eligible condition after payment had already been made on the personal injury claim.

If payment had not yet been made on the personal injury claim, the processing of the personal injury claim will stop and the VCF will notify you of the next steps to be taken on the claim based on the claim status at the time the VCF was notified of the death.  If the claimant was notified of an award on the personal injury claim, but payment on the claim had not yet been made, the VCF makes every effort to issue payment of the non-economic personal injury award once the proper Personal Representative is validated, and according to any limitations that may be included in the Letters of Administration issued by the Court.  The VCF then re-calculates any economic loss attributable to the victim’s personal injury as part of our review of the deceased claim. 

“Information and Instructions – Steps to take if a Personal Injury Claimant passes away after filing a Claim” includes detailed information about the processing of personal injury claims when a claimant passes away.

 

6.2  Calculation of Deceased Claims

There are certain considerations and assumptions applicable to a claim filed on behalf of a victim who died as a result of an eligible physical injury or condition that do not apply to a personal injury claim.  In cases where the VCF has already made a compensation determination on the decedent’s personal injury claim, an additional award may be made in a deceased claim filed for the same person.  The following considerations may affect whether there is any additional loss, and factors into the computation of the deceased award.

a. Economic Loss

1. In deceased claims, the VCF applies a consumption factor to the calculation of future lost earnings to reflect the decedent’s share of household expenditures – i.e., the amount of his/her own income that s/he would use for those expenditures. This would tend to lower the loss determination for lost future income. (See paragraph 8 of section 2.3.)

Note:  The loss of pension benefits, which terminated at death because benefits were maximized while the individual was alive and no survivor pension option was selected, or benefits that were reduced following a victim’s death, are not losses of future income compensable by the VCF.  That said, the Special Master recognizes the fairness disparity in a process whereby former first responders, who responded to the WTC site in the wake of the attacks, do not qualify for Line of Duty death designations from their former employers because they were not officially deployed to the response effort.  In those particular instances, and based on the circumstances of the specific claim, the Special Master will exercise her discretion and include a flat $250,000 in economic loss (in addition to any other economic loss awarded on the claim)

2. The VCF will not employ a residual earnings deduction when calculating future lost earnings for a victim who died of an eligible physical injury or condition. Thus, if the future lost earnings awarded in the personal injury claim were for a partial loss, then it is possible that the deceased claim loss of future income would be greater than the loss of income calculated for the personal injury claim.

3. If a decedent was disabled for an ineligible condition prior to death, the VCF will reduce the earnings basis on the deceased claim to reflect that a portion of the decedent’s lost earnings are due to the unrelated disability.  

4. The VCF does not award lost earnings prior to death when only a short period of time has elapsed between the disability determination as a result of an eligible condition and the subsequent death related to the eligible condition.

5. Replacement services in a deceased claim may be awarded, even if they were denied in the personal injury claim (see section 2.4(b)).

6. The VCF will compensate for documented out-of-pocket burial or memorial expenses for victims who died as a result of an eligible 9/11-related physical injury or condition.

Note: If the VCF has already made a compensation determination on the personal injury claim, and the deceased claim results in a lower award, the VCF will not reduce the prior personal injury award. 

b. Non-Economic Loss

For personal injury claims, non-economic loss awards are determined based on the extent of physical harm – measured by the severity of the victim’s condition and the impact on his or her ability to conduct activities of daily living. For deceased claims, non-economic loss is awarded for the victim’s pain and suffering in life based on the severity of the condition, and additional non-economic loss is awarded for the wrongful death portion of the claim.  For the latter, presumed amounts generally apply – $250,000 for the decedent, plus an additional $100,000 on account of the spouse and on account of each dependent of the deceased individual, as those terms are defined in the regulations. Thus, non-economic loss awarded for a deceased claim will generally exceed the non-economic loss awarded in the personal injury claim.

 

6.3  Application of Offsets in Personal Injury and Deceased Claims

Deceased claims (for victims who die of their eligible 9/11-related injuries) have two parts: (1) the personal injury award for the victim for the losses he or she suffered while alive, including pain and suffering and past lost earnings; and (2) the wrongful death award for the victim’s family to compensate for the harm they suffer as a result of the victim’s death, including their pain and suffering and future lost earnings. The VCF calculates these two awards separately, and the offsets related to the personal injury losses will be applied only to the personal injury award, while the offsets related to the wrongful death losses will be applied only to the wrongful death award.  The two awards will not offset each other.  For example, disability benefits that the victim received while alive would be offset against the personal injury loss determination but not the wrongful death loss determination. Likewise, offsets received by the victim’s beneficiaries as a result of his or her death – such as death benefits, life insurance, and Social Security survivor benefits – would reduce a wrongful death loss calculation but would not apply to the personal injury loss calculation. Certain offsets related to wrongful death, such as life insurance, apply to both the economic loss and non-economic loss components of the wrongful death claim. If the decedent had a large life insurance policy payable to one or more of the decedent’s beneficiaries, then you should take the amount of that policy into account in evaluating whether to file a deceased claim (see Table 7: Which Offsets Apply to Which Types of Loss). The “Award Detail” included with the award letter will reflect how each of the two awards was calculated, as well as the total sum awarded. A Sample “Award Detail” is below.

 

6.4 Personal Representative 

Court appointment of a Personal Representative

Claims for deceased victims (regardless of cause of death) may be submitted only by the Personal Representative of the victim. In general, for victims who lived in the United States, a Personal Representative is appointed by a state court and that appointment will define the authority of the Personal Representative to take actions regarding the estate of the deceased person. Each state has laws that define the process for appointment of a Personal Representative and the specific authority granted to that Personal Representative. If the victim has died and you wish to file a claim for that victim, you should contact the relevant probate or surrogates court in your state to obtain information about appointment of Personal Representatives. There are different procedures outside the United States and the VCF will address the issue of the appropriate representative for victims who did not live in the United States on a case-by-case basis in accordance with the law of the domicile of the victim.

In some cases, the victim may not have a large estate or may not require probate proceedings in the absence of an award from the VCF. Even in these situations, the VCF requests that you make every effort to obtain a Personal Representative appointment from a court. In general, states have procedures for individuals to open a simple or small estate in order to obtain an appointment. If you qualify for a VCF award, you might have to revise the petition for appointment. To open such a proceeding in New York, for example, you must file a Petition for Letters of Administration (if the decedent did not have a will), Petition for Probate and Letters Testamentary (if the decedent had a will), or Voluntary Administration (if the decedent’s estate meets certain requirements). There is a fee for opening these estate proceedings but, in many cases, the fee will be quite low. In New York, if the value of the estate is less than $10,000, you will have to pay $45.00 to open the proceeding. Additionally, if the value of the estate is less than $30,000 (or $20,000 if the decedent passed away before January 1, 2009), and the estate does not include certain property, you can file a Voluntary Administration in order to be appointed the Personal Representative of the decedent’s estate.  Please note the VCF will accept Letters of Voluntary Administration in very limited circumstances.  If you submit Letters of Voluntary Administration, the document must explicitly permit the filing and processing of the VCF claim, and you will be required to petition for Letters of Administration or Letters Testamentary that permit you to collect the VCF award once an award determination is made on your claim. The forms required to open an estate proceeding in New York, as well as additional information on opening an estate proceeding, can be found at the following website: https://www.nycourts.gov/COURTS/nyc/surrogates/index.shtml.

There are certain documents you must submit with your claim to be recognized as the lawful Personal Representative of the victim.  Please carefully review the information below and the "Documents required when the claimant is not the victim.” 

• Proof of Cause of Death: If you intend to pursue a wrongful death claim, you should select “Yes” when answering the question on the claim form, “Did the decedent die as a result of his or her 9/11-related physical injury?”  When answering “Yes” you must submit the death certificate for the decedent. You may submit what is sometimes referred to as a “long form” death certificate, which generally includes a medical report detailing the cause of death. Other records, such as a letter from the decedent’s treating physician prior to death explaining the cause of death, may also be helpful in establishing the link between the death and the decedent’s eligible condition. “Short form” or standard death certificates often do not identify the cause of death, or do not describe the cause of death in sufficient detail to allow the VCF to evaluate whether the decedent’s death was related to his/her eligible 9/11-related condition(s).

If your claim is submitted and the VCF is not able to determine the cause of death, your claim will be deactivated before eligibility is determined.  This means the VCF will not review the claim until you submit the required documents and the claim is reactivated for review.  

If you submit a claim on behalf of a deceased victim and you do not intend to pursue a wrongful death claim, you should select “No” when answering the question on the claim form, “Did the decedent die as a result of his or her 9/11-related physical injury?”  If you choose to select “Do Not Know,” then you must also submit a written statement indicating either: (1) you are not claiming that the decedent’s death was the result of an eligible condition; or (2) you do not intend to pursue a wrongful death claim.

 

• Proof of Court Appointment as Personal Representative: You must submit with your claim the court document that confirms your appointment as the Personal Representative.  This document might be called “Letters of Administration” or something else (depending on the state). Please see the section below for additional information on documents that are required.

The Letters of Administration (the document issued by the court appointing the Personal Representative) will often spell out the tasks the Personal Representative is authorized to undertake and will often place limitations on the authority of the Personal Representative. For example, the document might say that the Personal Representative is not allowed to compromise (settle) a claim without specific court approval. Or it might say that the Personal Representative can only collect funds up to a specified limit without specific court approval.

The specific limitations in the Personal Representative appointment document may affect the actions of the VCF. The VCF will inform you if we need additional court documents in order to process the claim. If the appointment document contains a limitation prohibiting you from compromising any lawsuit or claim on behalf of the decedent, you must obtain clarified Letters of Administration (or similar document) permitting you to pursue a claim with the VCF on behalf of the decedent.

New York has a specific statute that addresses claims submitted to the VCF for individuals on behalf of deceased individuals.  Personal Representative appointments made in New York, which limit the authority of the Personal Representative to file and settle cause(s) of action, will not restrict the filing and processing of a claim with the VCF.[1] These limitations, however, will affect the ability of the VCF to pay the claim.  Additionally, if the Personal Representative appointment document indicates that the Personal Representative may not collect any funds, or limits the amount of money that the Personal Representative may collect, the VCF will not pay any amount that exceeds that limit.  In such cases, the Personal Representative will have to obtain revised documents that authorize the collection of the remainder of the VCF award.  Instructions for Letters of Administration with Limitations provides important information about Letters of Administration with limitations.  

If you have not been appointed by a court as the Personal Representative of the decedent or as the executor or administrator of the decedent’s will or estate, and you believe you cannot get such an appointment, you may ask the Special Master to appoint you as the Personal Representative for the purposes of filing a VCF claim.  The Special Master will only appoint a Personal Representative in extremely rare circumstances such as legal or geographical obstacles that make it so the representative is unable to open an estate to obtain an appointment.  However, you must first attempt to obtain an appointment from the state probate or surrogate court where the decedent lived.  Please see Section 6.6 below for detailed instructions on requesting a Special Master appointment.

 

6.5  Multiple Personal Representatives  

If the court has appointed multiple individuals as co-Personal Representatives for the decedent, the co-Personal Representatives must designate among themselves who will serve as the Lead Personal Representative (“Lead PR”).  The Lead PR is the individual who the VCF will primarily communicate with regarding the claim, and the individual to whom the VCF will issue any payment on the claim.  The “VCF Lead Personal Representative Designation Form” includes information about the role of the Lead PR, and a summary of the rights and responsibilities of the other co-Personal Representatives.  Each co-Personal Representative, including the Lead PR, must sign, date, and print their name at the bottom of the form.  You can choose to have all co-Personal Representatives sign the same copy of the form or to have each co-Personal Representative sign and submit their own copy.

The Lead Personal Representative designation is required in order for the VCF to issue payment of any award.  The VCF cannot make payments to multiple people on a single claim and must have payment information for one designated Lead Personal Representative.  The Lead Personal Representative is the individual who will receive any payment on the claim and is required to distribute the award in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction.

If there is a need to change the individual designated as the Lead Personal Representative, the co-Personal Representatives, including the individual who is designated as the Lead Personal Representative at that time, must submit a new VCF Lead Personal Representative Designation Form signed by all co-Personal Representatives, designating a different individual as the Lead Personal Representative.

 

6.6  Special Master Appointment of a Personal Representative 

The Special Master will appoint a Personal Representative only in very limited circumstances such as legal or geographical obstacles that make it so the representative is unable to open an estate to obtain an appointment. You must first attempt to obtain an appointment from the state probate or surrogate court where the decedent lived. Circumstances where the Special Master has appointed a Personal Representative include when the decedent resided and died internationally, when a state’s probate laws did not allow the appointment of the Personal Representative because of residency requirements or time lapse, or other matters of legal impossibility. The Special Master will not appoint a Personal Representative because a probate court’s rules are difficult to understand or the court is delayed in processing.

Any request for the Special Master to appoint you as the Personal Representative should include a notarized statement that addresses your relationship to the decedent, documentation demonstrating proof of your relationship to the decedent, an explanation of why you were unable to obtain a court appointment, and additional information regarding the decedent’s estate. Follow the instructions provided in "Information on Appointment of a Personal Representative" to request a Special Master appointment. 

 

6.7  List of claims filed on behalf of Decedents  

The Special Master is authorized under the regulations to publish a list of individuals who have filed a claim with the September 11th Victim Compensation Fund on behalf of a deceased individual, as well as the names of the deceased individuals on whose behalf a claim has been filed.  This includes those who have amended a personal injury claim to notify the VCF that the victim is now deceased.

Information will be posted for a period of 90 days from the date the claim or amendment is submitted.

 

6.8  Payment Instructions specific to Deceased Victim Claims

Please review the information in Section 3.6: “Payment instructions specific to claims for deceased victims.”