N002385
January 16, 2002
Via Facsimile
Kenneth R. Feinberg, Esq.
Special Master
September 11 Victim Compensation Fund of 2001
C/o The Feinberg Group, LLP
1120 20th Street, N.W., 740 South
Washington, D.C. 20036-3437
Dear Mr. Feinberg:
I am writing in my capacity as a director of and pro bono legal counsel to the
Robin Hood Foundation ("Robin Hood") and the Robin Hood Relief Fund (the "Relief Fund").
Robin Hood established the Relief Fund to help victims of the World Trade Center attack and
their families. The Relief Fund specifically benefits families of the missing or injured; the
firefighters, police officers, and rescue workers; and others who have been affected by the
economic consequences of the attack and its aftermath. In particular, the Relief Fund is working
to ensure that the needs of lower-income victims are met in both the immediate and long term,
and that no needy victim falls through the cracks of the relief effort.
The Relief Fund's understanding, from working with charitable organizations that
provide direct relief to low-income relatives of victims of the September 11th terrorist attacks, is
that many of the victims of those attacks died intestate. Our further understanding is that the
intestate status of these victims complicates the process for filing a claim and receiving an award
under the September 11 Victim Compensation Fund of 2001 (the "VCF").
Therefore, we would like to bring to your attention the following points, which
are representative of many, regarding the VCF, and certain issues that low-income relatives of
victims of the September 11th attacks facing in following the procedures set forth in the
interim final rule issued by the Department of Justice on December 21, 2001(the "Interim
Rule"):
1. The scope of the personal liability of the "Personal Representative," as
that term is defined in Section 104.4 of the Interim Rule, needs to be more clearly-defined.
Under New York intestacy law, it can be difficult for immigrant relatives to qualify an
administrator who can then serve as the relatives' Personal Representative for purposes of the
VCF. This is because the SCPA requires that the administrator of an intestate estate be either a
citizen of the United States or a domiciliary of New York State. We are aware of some relatives
who cannot qualify under New York law as well as other individuals who may qualify but who
lack the language, literacy or other skills necessary to undertake the task of serving as Personal
Representative. Responsible persons have expressed willingness to consider serving as the
"Personal Representatives" for relatives that have no one else available to serve in that capacity
under the New York Surrogate's Court Procedure Act (the "SPCA") and the New York Estates,
Powers and Trusts Law (the "EPTL"). However, these persons are properly concerned with
issues of personal liability and would want reassurance that if specific procedures were followed
in good faith and court approvals obtained, they would not be subject to personal liability for
breach of fiduciary duty in their capacity as administrators, absent fraud. Therefore, we would
recommend that the Interim Rule be amended to state that, in the absence of fraud, the Personal
Representative will not be personally liable for any breach of fiduciary duty provided that (a) the
Personal Representative obtains the consent of a state court of competent jurisdiction prior to (i)
giving the notice required by Section 104.4(b) of the Interim Rule and (ii) filing a plan with the
Special Master for distribution of any award received from the VCF (the "Plan of Distribution")
under Section 104.52 of the Interim Rule, and (b) the Personal Representative obtains the
consent of the Special Master for the Plan of Distribution.
2. The relationship between the procedures set forth in the Interim Rule (and
upon adoption, the Final Rule) and state-law principles (e.g., the SCPA and the EPTL in New
York as well as relevant state case law) needs to be clarified as well. For example, the New
York Surrogate's Court generally authorizes, through letters of administration, an intestate
administrator to prosecute legal claims involving wrongful death and/or pain and suffering and
requires that the administrator obtain court approval of the allocation and distribution of damages
upon compromise or settlement of these claims. The question arises as to whether this
requirement would continue to apply in the face of the VCF and the Interim Rule or whether the
VCF and the Interim Rule would supersede state procedure. In addition, clarification should be
given regarding the characterization of any awards received from the VCF. For example, under
the EPTL, if award funds are characterized as being received as a recovery for wrongful death,
the distribution of such award funds would fall outside of the decedent's estate (e.g., not
constitute an asset of the estate) and would be distributed based upon pecuniary loss. However,
if the award funds are characterized as being received as a recovery for pain and suffering, the
award funds would be distributed as a part of the decedent's estate, either under the terms of the
decedent's will or under the laws of intestacy. Stated differently, clarification should be given as
to whether award funds from the VCF are to be distributed according to applicable state-law
distribution principles or instead whether award funds are to be distributed outside of the
decedent's estate using such principles as guidance in identifying the takers and amounts payable
pursuant to a Plan of Distribution.
3. The procedures for appointing an administrator of an estate of an intestate
needs to be streamlined. The procedures for appointing an administrator of an estate of an
intestate can be complicated and lengthy under the SCPA and the ETPL. For example, these
procedures typically require the giving of notice to any person with a prior or equal right to act as
intestate administrator and may not involve proceedings to establish kinship. These kinship
proceedings could involve costly investigations to identify relatives living abroad, including
nonmarital children. We request that a simplified and expedited procedure for appointing the
administrator of the estate of an intestate be put into place by the New York Surrogate's Court
working with the Special Master and the New York State Attorney General, along the same lines
as the expedited procedures for obtaining a death certificate in New York State adopted last year.
* * *
We thank you in advance for your consideration of these issues.
Very truly yours,
Comment by
Robin Hood Foundation