The Adventures of Matt Weiner & Dovie

Sometimes you have to try something different. I have an idea for a young teen story. Since I have been accused of thinking and acting like a 13 year old, I will write in first person as 13 year old Matt Weiner. I am posting Chapter One. If anyone likes it, I'll post more....

ADVENTURES OF MATT WEINER AND DOVIE
Chapter One

I first knew that Dovie had special powers when I told Mom I didn't know who spilled the cereal in the kitchen. There was no reason for me to lie about it, but I told Mom I didn't know, even though I had just spilled it. It was stupid to deny it, since Mom wouldn't have made a big deal, and I had even started sweeping when I lied and said I hadn't spilled it.

As soon as I said it, Dovie started hitting me and barking. He does this thing where he runs towards me and then jumps and hits my legs. He's short and long at the same time, so he hits me below the knees even on his hind legs. When he barks and hits though, he means business.

Mom was laughing and said "Maybe he wants some cereal". Sometimes he does the hitting thing when he wants food, but when he does that he whines. The way he was barking was different. He was barking AT me. I said "What is it Dovie?" and he just kept barking.

Mom said "Maybe he's trying to tell us who knocked over the cereal." Dovie stopped barking and we both looked at him and laughed. I said "He knows more than me.", and he started barking at me again. I had a funny feeling and then said, "OK Mom, I confess, I knocked over the cereal. I'm sorry I lied about, I don't know why I lied, I was gonna clean it up anyway."

Mom and Dovie both got quiet. Mom said, "You know Matt, lying about small things is just a bad habit to get into." All three of us were quiet then, which is SO uncomfortable. I know that Mom does that quiet routine to make me think about things, and it kinda works, but I think she gets uncomfortable too. So then she said "I don't think Dovie likes lying either", and she laughed. I was thinking the same thing, but at that moment, it didn't seem so funny.....

Barry Bonds

Barry Bonds quest for the all time home run record will be a big story in upcoming weeks. For non-sports fans, the story line goes like this: Barry Bonds was an excellent player for many years, hitting quite a few home runs. In his mid 30's, his home run production shot upward, as did some other players. In hindsight, they were probably all on steroids, which some have admitted and most have denied. There are ongoing criminal cases and investigations. Bonds is not a popular player, except in his home park in San Francisco. He is unfriendly to reporters, and has generally adopted an isolated, surly persona. Because of the "taint" of the steroid allegations, major league baseball is not making much fuss about his upcoming record, and many fans do not think his record will be "legitimate". I don't know if a poll has been taken, but I sense most of the sentiment across the country is anti-Bonds.

I beg to differ. He should be recognized and respected for his monumental accomplishments. The standard refrain is that he "cheated". The problem is that cheating means breaking the rules. Fact is, if he used steroids or other performance enhancers, it was not against the rules at that time. The league and the teams did not discourage the many players who did it, they seemed to tacitly encourage it. Many of Bonds' contemporaries used performance enhancers, whether it was steroids, growth hormones, or other substances. His performance was so far superior to any other player, then or EVER, that it commands respect and admiration.

He was a superior player before the home run burst. His performance through this day, where at age 42 he remains the most feared and influential single player in the game, is remarkable. Teams continue to walk him at an incredible rate. He does not have a strong hitter after him in the lineup. Every move he makes is scrutinized and analyzed. Despite these obstacles, he is among the league leaders in home runs and on base percentage. He gets so few good pitches to hit, that all fans realize that he must have hit the most home runs, per swing, of any player in history....by a wide margin!!! Unless steroids or HGH gives you enhanced eyesight, judgment and bat control, we should all marvel at his production.

In any sport, my guage of a truly special player is when opponents say "Don't let this guy beat us". The greatest players rise above this and still beat you. All sports have players like this. The athletes who come to mind are Michael Jordan, Tiger Woods, Wayne Gretsky, and any number of football luminaries (Joe Montana, John Elway, Lawrence Taylor, Jim Brown). That is top flight company. In baseball there is only one player on this level in the modern era.....Barry Bonds.

Baseball, and baseball fans, should treat him that way.

Immigration (What's Going on Here?)

It was gratifying that Congress responded so rapidly to my previous immigration post. http://nylaw2law.blogspot.com/search/label/Immigration

The theme was that the Democrats would never allow an immigation bill to be passed while Bush was President, and despite the pressing need, it will not happen until 2009, when a Democrat is President.

Within 48 hours of my post, the story of the big "compromise bill" hit the papers. Could I have been wrong? Are the various players in Congress working together in a bi-partisan manner for the good of the country? I would like to think so, but something smells funny about this bill (fish or rats, maybe both). Here are a few thoughts on this bill, and the ongoing debates:

1. It's curious that the Democrat at the forefront of the bill is Ted Kennedy, probably the only Democrat who never has to worry about being re-elected. He can afford to act bi-partisan, and also inject/infect the debate with all kinds of issues that would be unpalatable to most Senators and Congressmen.
(An aside -- I don't think this "compromise bill" has anything to do with actually passing a law, it's all about framing the debate for the law they are going to eventually pass. The one that's going to be signed by President Hillary or President Edwards. So now we are hearing some debate about the importance of re-uniting immigrant families, in the context of the immigration laws. Of course, most of us knew this was an issue in immigration policy, but not a FOCAL issue. The present debate is designed to get us all ready for this, when the real law is debated and passed)

2. President Bush is desparate to do SOMETHING good and memorable, so he has to support the compromise bill. There are some things in there for him. Some border security, some fines, some onerous "return home and wait" provisions, some English language preferences. Unfortunately for him, his right wing support base will not go for this bill, and will enter the debate in a shrill and partisan manner. This will further splinter an already divided Republican party. In their effort to frame the debate about what the immigration law SHOULD focus on (the security of out country and the best long term interests of the economy and our society), the Republicans will be cast as partisan racists.

3. In a normal world, when you are trying to reach a compromise in a complex conflict, it can be encouraging when "everyone is unhappy about the proposal". That seems to be the case here, but does anyone think this will lead to further workable compromise and a law?

4. None of the Presidential hopefuls on either side is saying much about this bill. I don't blame them. As Jackie Mason might say "It's not really any of my business". I suspect they know what this thing is really about, and they are going to sit this one out, until it's THEIR time.

Here's a fun thing to think about.....what would you rather have......a law that took all the decent ideas in the present bill, and worked through them in a true bi-partisan fashion in the best interests of our country, ending up with a law that may leave a few groups wishing for more, but really was designed to right the course of this unworkable mess....OR....

The law that will be passed in 2009 by a Democrat Congress and Democrat president?

OK.....it's not that funny....

The Why of Wills 4 (Kinship and more)

In a kinship proceeding, the cousins really have to not only prove who they are, they have to prove the non-existence of prior classes (spouse, children, siblings, etc). The level of proof is high, and the money is not going to be released if its not proven.

A related situation happens when such a person makes a will. For a will to be probated in New York, you must prove to the court that all persons "adversely affected" by the will have been notified. These are the people who would inherit under intestacy. Proof of their notification is shown by their signing a waiver, or by their being served with a Citation. What happens if the decedent made a will, and the distributees are cousins? Do you have to go through a "kinship proceeding", just to figure out who to put on notice for the will? The short answer is NO, you have to show "due diligence", both in searching for these people, and in notifying them. If you have looked for such relatives and can't find them, the court may let you serve them by "publication". That's what those little notices in the newspaper are. Those notices happen after a diligent search has been shown, and the court has authorized service on these people by publication. The notices are basically saying to these people....."Hey, the Will of Joe Blow, your uncle, is being offered for probate on July 15th, show up or forever hold your peace. It's rare that anyone responds to these, though it has happened. How much diligence is "due" diligence? I have found the courts to be practical about this. If the Estate is very large, they expect more diligence. They may require a professional investigation. On a smaller estate, they will sometimes permit the attorneys to show a search using available public records, including the internet.

In the overall scheme of things, a due diligence search in the course of probating a will is a much better situation than laughing heirs and a kinship proceeding. Better for whom, you may ask. Better for the cosmic karma of the universe, something I find myself noticing more as I get older.

The Why of Wills 3 (Kinship Proceedings)

This is part 3 of the things that happen when people who should have made a will, don't. I am talking here about the loners, spinsters, black sheep, oddballs, singletons, dancers to their own drum, keep their own counsel......people who die not only without a Will, but without close family members to inherit from them.

There is nothing wrong per se with being single and without children. Very often such people have close relationships with siblings, nieces and nephews. If they don't make a will, these relatives will inherit, and it seems just and proper.

Very often such people accumulate a lot of assets, and their closest relatives are cousins, sometimes lots and lots of cousins, scattered around the globe. If this person dies without a Will, and the Public Administrator administers the Estate up to the point of a kinship proceeding (see previous post), what happens in a kinship proceeding?

Simply put, the Estate is divided into two halves, for the decedents paternal and maternal sides, and the cousins on each side have to PROVE their respective interests. Of course, before they even get to prove who they ARE, they have to prove the non-existence of those relatives who would inherit ahead of them. Cousins have to prove that there is no spouse, no children or grandchildren, no parents, no siblings, no nieces or nephews. Proving a negative can be challenging.

In these proceedings we generally prove things by locating and producing certified documents. Things like birth certificates, death certificates, marriage and divorce papers, estate records, and some more obscure ones like obituaries and census records. The non-existence of spouse and "issue" (lawyer word for children or offspring) is usually proven through testimony of a non-interested witness. It can be challenging to find a person who knows enough about the decedent to testify that they knew the person well enough to say they were not married and never had children. There is a certain leniency with this kind of testimony, since one would think that if there WERE spouse and issue, they'd likely come forward.

Once spouse and issue are accounted for, cousins generally must use a geneologist to set forth a family tree, and obtain the appropriate documents as proof. These trees typically contain information about pre-deceased siblings and their issue, parents and grandparents, and aunts and uncles. The tree often contains many of these people, but they have predeceased the decedent. When the lawyers and court participants in these proceedings are referring to the proofs regarding these persons, we talk about "killing them off". Nothing personal, but as long as they existed and we can't prove their death, they'd inherit ahead of cousins, and so we try to kill them off.....by proving that they are dead.

These proceedings are designed to protect the interests of people who may have had inheritance rights. The last thing the court system wants to allow is for someone to show up later, after the money is distributed. This thought underlies many things that go on in Surrogates Courts.

Next post....even MORE on kinship proceedings.

The Why of Wills 2 (Avoiding Laughing Heirs)

This is part 2 of "The Why of Wills".....

In New York, here's what happens when a person with no "close" family (no spouse, kids, parents, siblings, nieces or nephews) dies without a Will. The Public Administrator of the County where the person dies, begins to administer the Estate. The Public Administrator is a public official who steps into estate cases when there is nobody else available to act. In a County like Queens, with 2 million people, it happens quite often. They have a good sized staff, and a highly skilled law firm to represent them.

When it appears that a person has died without a Will, or if there is a Will but nobody is acting, the Public Administrator begins to administer the Estate. They do anything and everything that an Executor or close family member would do. They sometimes arrange burial, they clean out apartments and houses, they try to figure out who the closest living relatives are, they search for a Will, they receive mail, they sell houses or apartments, they marshal the accounts and assets of the decedent, they deal with claims of creditors, and anything else that may be needed.

When they reach the point where an Estate Administrator would ordinarily pay the money to the heirs, the Public Administrator will then file an "Accounting Proceeding". This is a proceeding where they set forth everything they have done, lay out all the money taken in and paid out, and ask the Court to set an attorneys fee for their attorneys, and approve the way they have handled the money and the claims. They notify all interested parties, and when the accounting proceeding is heard in Court, any disputes are resolved. The final thing the proceeding requests is the remaining money to be held by the City of New York, pending the establishment of "kinship".

A "Kinship Proceeding" should then follow. This is when the cousins have to prove who they are, and thereby claim and ultimately receive the money. This can be rather involved, and very interesting, depending on your perspective.

As a lawyer, I find these interesting. They are a lot of work, the kind of work we are well paid for. For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these laughing heir cases are often gut wrenching. The thing is, they can be simply avoided......a person whose closest family is cousins SHOULD make a will.

More on Kinship Proceedings in the next post.....

The Why of Wills

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..don’t people who have “nobody to leave my money to” make bequests to charity?

WHY…..do some people have a pathological abhorrence to paying attorneys fees, and accept heavy financial consequences when an ounce of prevention would have led to a better result?

WHY…..do people hold family grudges for years and never make the first move towards resolving the issues?

I know, I ask these sarcastic “why” questions. The kind of questions we could probably answer, but what would it accomplish?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:

- if a spouse and no children, all to the spouse
- if children and no spouse, all to the children
- if spouse and children, first $50,000 to the spouse, then 50/50 spouse/children
- if no spouse or children, all to the parent(s)
- if no parents, all to siblings (or children of predeceased siblings)
- if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins.

The above is a rough sketch, and there are rules to cover EVERY situation you could think of, and they ALL come up. It is almost impossible for there not to be at least SOME cousins. It is actually fairly common to have an older person who never married or had children, whose parents are long gone, and who either had no siblings, or outlived them all. If a person like this does not make a will, their cousins inherit!!! In law school the professors refer to this as “laughing heirs”. Everyone laughs about this in law school, and probably thinks it some obscure situation that never happens in real life.

Experience teaches otherwise…..

More tomorrow….

Immigration

After reading about all the immigration issues, proposed bills and reforms, and talking to a lot of people who know more than I do, I make the following observations:

1. Something meaningful needs to be done.

2. There are a lot of good ideas being discussed.

3. Sooner would be better than later.

4. If there were ever a situation where Congress and the President should work together in a bi-partisan fashion for the good of the country, this is it.

Now, here is a PREDICTION.........

There will not be comprehensive immigration reform, nor will there even be a viable bill presented by Congress, until 2009.

It's difficult to say, but my prediction is going to come true because the Democrats will NEVER let an immigration law get passed while Bush is President. If you read all the proposals being bantered about, from both Democrats and Republicans, it's clear there is the making for a sweeping new law that will address the present crisis. It cries out to be addressed, NOW, and for the future of our economy, our security, and our culture.

Is President Bush a belligerent jerk about most things? Surely he is. But isn't it clear that everything in the immigration realm is negotiable? Isn't it also clear that if Congress and the President WANTED to fashion a law that dealt with all the issues, they could? Would the President negotiate on the areas of disagreement on immigration? Yeah, he would. And yeah, part of the reason would be for his "legacy", as the President who passed immigration reform. It won't save him from the Iraq war legacy, and he surely knows it. So, the Democrats COULD negotiate the fine points with him and his people.

Do you think they will? Or will they windbag their way through as much rhetoric and mud as they can, and then we will all look up, the election of 2008 will have occurred, and Hillary or Edwards will be President, and then they can pass a law that suits THEM, and their proud new constituents, and they can take the credit for it.

Looking at the Democrats as a whole here and now, with a sorrowed and shameful feeling that my prediction is dead on correct, I will say to the Democrats in Congress....

If you cannot reform the immigration laws NOW......SHAME ON YOU!!!

WHY....

Here are some "Why" questions. I don't claim to have the answers, though I readily admit that the nature of the questions often suggest how I feel about the topic. So, in the interest of provoking some thoughts......

WHY....do people who are "always having problems" with other people, never realize that the problem is with THEM?

WHY....are people proud of things they should be ashamed of, like "I'm computer illiterate." "I am a couch potato who only eats junk foods." and "I never vote"?

WHY....do people not attend to obvious medical problems?

WHY....do people with marital problems use their children to punish each other, rather than try to salvage the one positive thing they may have done together?

WHY....are some people not interested in anything new?

WHY....do people know in advance that they "freeze up on tests"?

WHY....would anyone not TRY to overcome certain fears (flying, dogs, public speaking)?

WHY....does anyone still smoke?

WHY....did women generally support and admire Bill Clinton more than any politician in recent memory?

WHY....are there commercials for erectile dysfunction pills during "The Wonder Years"? which leads to a related question....obviously the makers of boner pills think that middle aged people must watch the The Wonder Years, to fondly recall growing up in the 60's. WHY would it not occur to anyone that a present day young teenager might watch and enjoy The Wonder Years and all the good that's in that show? Are we that far gone????

WHY....doesn't someone stand up and say that Mayor Bloomberg is a great mayor, primarily because he is a super smart businessman, who is so rich that he is uncorruptable, and this is a good thing. There, I said it.

WHY....does having any kind of insurance not feel assuring?

WHY....are there still thousands of people who do not have EZ Pass?

WHY....in the aftermath of the Imus fiasco, will Jason Whitlock not emerge as an influential person in the African American community? If you have never seen this, check it out....
http://youtube.com/watch?v=L5ZQXaXmCW4