|me and probate
I’ll start with Claire—my ex-wife. We
married in 1963, divorced 5 years and 2
children later and I became a deadbeat
dad—not by choice but temperament—the
inability to maintain steady employment—a
long story. I became a deadbeat dad and
Claire became a single mother responsible
for the raising of 2 small children and
somehow, following that one, the
relationship was never the same. But she
was fond of my parents and devoted to my
My father died in 2001 and my mother 3
years later and when I visited the bank
to close out the account—there was no
account. The account had been closed and
the funds relocated north—to a bank in
I could have put 2 and 2 together but
didnt need to. Claire had access to the
account—to write checks for assisted
living and other expenses. Also she was
a paralegal and savvy businesswoman and
when it came to jumping on money that
would or should have found its way to
Either way the money was gone and what
could I do? Not much. It wasnt a
fortune--$15,000 or so but I was
struggling financially at the time—to go
along with all the other times and
she was a millionaire (real estate) so I
sat down to write a letter in the
supplicating—or maybe pathetic vein—
hoping to appeal to some charitable
instinct and—big surprise—there was no
I let it pass.
Connie and Frank
Ill call Connie “Goodj” because that is
what everyone called her—a name given as
a child and why or how remains a mystery.
She was my mothers sister—the baby sister—
and they were close. She had no children
of her own and when I was born it was to
enter the world with 2 mothers. I became
a surrogate son and growing up spent a
lot of time with her and Frank—maybe more
than my own parents. At one point I lived
with them for a year—a long story.
Goodj was devoted to my mother and adored
my father. There was between them some
mystic bond. She was Sicilian, from a
family of peasants and my Dad was a jew—
the sporting type— a snappy dresser, also
handsome and also, to complete the
But to be funny you need someone to laugh
at the jokes—an audience—and in goodj he
had found the audience of his dreams. He
didnt even need to speak—only deliver a
look in her direction and she would
The interesting thing about this marriage
was the impressive amount of money they
were able to sock away over the years
that derived entirely from 2 low income
jobs—Goodj as a part timer at Sweet Kleen
laundry on Kenmore ave in Buffalo—the
home town--and Frank who humped it as a
driver over at Eddie Jays wholesale meat
But Goodj was a saver—the saver of
savers. I enjoyed teasing her by making
the point that a visit to the market
armed with a purse stuffed with coupons
clipped from the Sunday edition of
the Buffalo Courier Express—and she hits
checkout with a cart full of groceries
and household supplies and empties the
purse of coupons onto the counter and the
clerk totes up the credits and the store
owes her money.
She loved that one.
Also you may recall a statement of
Einstein--asked the greatest mathematical
discovery of all time and E says:
So there you have it—the magic of
compound interest applied to my aunts
amazing gift for making one dollar do the
work of two and it all continues to occur
over a period of 70 years and the result
is: a fortune.
Now they were old, pushing 90 with the
end in sight and here was all this money
and who would get it? Claire would get
it. That was my view. Its the person who
is there at the end who gets the money.
Connie and frank lived in the town of San
Leandro, a suburb of Oakland. Claire was
a short drive away over in Marin County.
I was a long drive away down in Los
Angeles. Claire was the one keeping an
eye on them—shopping and running errands,
doing the books and attending to the
usual medical emergencies,etc.
What about a will? Was there a will? A
good question. I heard mention of a
document from time to time over the years
but the details were unclear. The only
thing to be said for certain was: if a
will existed my mothers name would be on
But either way, will or no will, Claire
was a paralegal and savvy business woman
who had jumped on my mothers money and
now we werent talking about $15,000 but
something in the mid six-figures—easy—and
for her to obtain power of attorney or
have a will drawn up or affix a codicil
to an existing document would have been a
slamdunk. And she wouldnt wait until the
last minute. In my view it was a fait
accompli—accomplied months or even years
before and what could I do? Not much. I
spoke to a lawyer—a probate type-who
said: people can leave their money to
anyone or thing they want. If some kind
of coercion is involved—thats a different
story. But coercion is always difficult
Claire wasnt the coercive or abusive
type. She was a good woman and fond of
Goodj and Frank and someone had to take
care of them and it was her. But she
wasnt so fond of me. We had been divorced
for many years and the relationship had
its ups and downs. Right now it existed
in a state of neutral. But when it came
to the family we were always able to set
our differences aside and pitch in to
help. My mothers last years holed up in
an assisted living facility in Los
Angeles were diffcult and Claire called
her every day.
I was still close to them. I called
regularly and drove up from time to time
to see friends in the city and drop in
for a visit and also, not to forget, feel
them out about the money—a touchy subject
and you raised it at your peril.
I recall the last visit. I was staying in
the City and took BART to the East Bay to
the San Leandro station and hoofed it from
there to the apt a few blocks away. I
carried a bag of goodies for Goodj—
cannolis from Stellas in North Beach. All
cannolis are not created equal and those
from Stellas are at the top of the list
and should be for $4.00 a pop.
I was fond of my aunt. I adored her. She
was a sweet woman and—equally important—
fun. She awoke every morning singing—the
same song—by Jerry Vale—one of the many
Sinatra crooner types of that era. It
made my mother nuts. She couldnt figure
it. Goodj was the happy type. But how
could a woman who did nothing and went
nowhere be happy—to wake up singing every
My mother said: They have all that money
they refuse to spend, they live like
paupers but she is always singing!
I said: Ma—its her money—to do with what
she likes and what she likes is to save
and save some more and encourage the
magic of compound interest do its thing.
One day it will all be yours.
I can wait. I love my aunt.
They did go out one time. They went to
the Town Casino to see a show. The Town
Casino was a Buffalo night club that
catered to the big stars when they played
the city—including Jimmy Durante—my aunts
favorite and my mother was able to
persuade her to attend the show. Off they
went, the four of them, to see Jimmy
Durante, there was dinner and it was a
great show and my aunt had a marvelous
Then the bill arrived.
The Town Casino was the top club in
Buffalo that attracted the top stars, the
chef was first rate and all this was
reflected in the bill.
My aunt looks at the bill, a moment of
silence occurs while the shock registers—
and she starts screaming.
How to describe this place. It was a
box, a small box in a building of boxes—
where they had lived for 30 years,
practicing astounding habits of thrift
and now they were pushing 90 with a bit
of dementia beginning to creep in and
the pad was in a deteriorating state, the
squalid or encrusted state, leaking gloom
and a dismal pervading angst like a
But I was always happy to see them and
reminded once again how fond of them I
was and had always been. Yes they were
hard core saver types but not when it
came to me or my family.
I produced the cannolis and my aunt
squealed with delight and pounced upon
these goodies and quickly devoured not
one but two. She still had her appetite.
Next came the laying of money on the
beloved nephew—a ritual that went back to
earliest childhood—beginning with $1
that gradually, according to the laws of
inflation, had worked
its way up to 5, then 20 and presently
stood at 100. Now that I was 70 and
liable at any moment to drop dead myself—
it was too bad we couldnt tack another 2—
or even 3—zeros onto this one.
We spoke of this and that—my teaching
job, life in Los Angeles, going on 40
years and beginning to suck big time—
and the grandchildren, the children of my
son that I had never seen. Why? Because
my son had a low opinion of Dad he
preferred not to revise and this was a
consequence. It was ok with me. I had a
life that didnt require the love of a son
to complete itself.
But here in the apartment I could see the
latest pictures of the kids—getting
bigger as kids tend to do.
Goodj said: Claire takes those kids
I said: thats her job. She is the
grandmother—the perfect relationship.
Meanwhile I awaited an opening, to insert
the subject of money, and of it what
would happen once they were gone—in
the not too distant future. The opening
failed to occur-but now from out of the
blue Frank says: Im giving everything to
the grandkids—but not to David. David
I knew the answer to this question but I
said it anyway: Why does David get
Because he never invited you to his
That was always an issue—with them and my
I said: in that case you must create a
trust. Claire can help you with it. Shes
Yes—those were my words, spoken with an
enormous lack of enthusiasm. But I
couldnt argue the point. I was 70, my life
was behind me and the grandkids, not that
they needed it, were the logical heirs.
Either way, if that was their preference
it neatly solved the inheritance issue
that had been causing me many an
ambiguous moment. I was out of the
The visit ended. I said my goodbyes—
embraced my aunt--maybe for the last time—
which it was—and Frank walked me outside
to his car. He opened the trunk and poked
around for something—a sleeve of golf
balls that he handed over.
He said: take these. I cant play anymore.
I said: Thanks uncle Frank.
That was the last visit. 3 months later—
in Jan 2009 Goodj died. She fell and
broke a hip and suffered a heart attack in
the hospital. Claire had her cremated.
There was no service because for a
service you needs friends and they had
Frank was in a bad way. He seemed unable
to grasp the fact of her death. She was
gone and where she had gone he didnt
know or when she would return. She would
return but when? The idea of her death
was a thought he was incapable of
I called from time to time and all he
could say was: its a real mess.
3 months later. Goodj died in February
and now it was Franks turn. I got a call
from Claire—a message on the machine.
Frank died yesterday.
That was the message along with some
details—another heart attack, a short
spell in the hospital but the will to
live was gone, he went into a coma and
never came out.
That night I sat down to write a letter—a
letter to Claire—similar to the one
written following the death of my mother.
The difference: was: my mother left
$15,000. How much Frank and Goodj had
salted away I didnt know but a
conservative guess would have been half a
million. Lets not forget Einstein and
something called the rule of 72 that
invites you to divide into this number
the annual rate or return you are
getting on your stash and the number to
result is the time required to double the
stash. Also you may recall a period in
the 80’s—the Regan years—when the
interest rate was 18%. Do the math.
I scribbled away at the letter—trying to
find the tone. Already in my mind I had
conceded the money to her and very little
to be done about it except to remind her
of the role I played for 70 years—the
beloved nephew and surrogate son and the
close relationship of them both to my
mother. I wasnt making a pitch for the
entire estate. I left that one hanging.
In my mind I would have been happy with a
modest cut—say 30%. I would be thrilled.
That was the tone—non-threatening because
I had nothing to back it up with. Maybe
she would have a weak moment. That was my
hope—not much of a hope.
The next day. I was still at work on the
letter and the phone rings—Claire.
She says: did you get my message?
I got it.
You have to come up and help me clean out
Now she said: do you know anything about
Major pause—say what?
I said: its a good question. I heard
something about a will years ago—
something my mother might have said-- but
I dont recall details.
Try to remember!
I cant remember. It was years ago.
This was interesting—maybe more than
interesting. Maybe unbelievably
fantastic, awesome and amazing. She had
done nothing about the money and all my
paranoia and evil thoughts were without
merit and everything was up for grabs.
I came to life. I was euphoric.
She said: Do you know what happens if he
died intestate? Youre out of the picture.
You arent related to him. You are
related to Goodj who predeceased him so
its Franks estate that enters probate.
The estate enters probate, there is an
heir search—on Franks side—and if no
heirs are found you still dont get the
money. It goes to the state.
Pause. I let this one—all that money
going to some great niece or—even worse—
the state of California-sink in.
I said: That isnt going to happen.
What do you mean?
I dont know what I meant but I meant
She said: I am going over today to start
sorting things out. Maybe something will
I said: If there is a will its in that
I thought the situation over. The
solution was obvious: the forging of a
will. How hard could it be? I had a
notion—that white collar crime offered
particular advantages for the criminal
mind—the superior criminal mind—that I
happened to possess—a legacy from my
father. Here were all these clerks
over at superior court, fresh out of law
school and still somewhat wet behind the
ears being hammered daily with piles of
documents that found their way to their
desks and buried among them was a will,
forged by a brilliant criminal mind,
cunning, devious and above all, blessed
with a superb gift for detail.
I was already putting a crew together—my
friend Amy, Japanese graphic designer who
would be perfect for the forging of
signatures or other documents required
and, not to forget, the witness angle--
two friends in Palo Alto who would
be happy to participate in the scam for
I went to bed but couldnt sleep. My mind
was in turmoil.
I wanted that money!
The next day I had breakfast at the
Farmers Market and then it was over to
the Apple store in the mall to check on
my stocks and email and here was one from
Good news. I found a will. And your
mothers name is on it.
I flew up.
I flew to Oakland and took Bart to San
Leandro and hoofed it to the apt. I rang
the managers bell who came down with the
I entered the apt and there on the
kitchen table were the wills, one for
each of them but both the same, written
in 1963, naming my mother as beneficiary.
Its a funny feeling, to hold in your hand
two pieces of paper worth half a million
dollars. The exact amount was still not
known. Claire had frozen the accounts
following Franks death—6 banks with 7
accounts. She had statements on some but
wasn’t privy to all. The figure she
arrived at was $400,00 plus. But that
seemed low. Either way—it wasnt chopped
Here also the keys to the car parked
downstairs in one of the stalls, covered
with dust and a dying battery but I got it
started and drove to the car wash and
from there to Lafayette to meet with a
Lafayette is a village type community
north of Berkeley on the other side of
the Caldecott tunnel. Its quiet,
pleasant, quaint—non-aggravating. I had a
cousin living there whose son-in-law
knew this lawyer—a probate type.
It was a partnership operating out of an
office suite in a small industrial park,
a modest operation but—it was probate. How
hard could it be? I wasnt OJ Simpson
obliged to hire some high-priced bullshit
artist of the Johnny Cochran type to
spring me from a double homicide rap.
I met the lawyer—Mark—mid or late
thirties—a mild mannered type.
I filled him in on the situation while he
scribbled notes on a pad and I handed
over the wills.
He examined the wills and laid some bad
news on me.
He said: Your mother is sole beneficiary
but she is deceased. Also she is the
sister of your aunt, unrelated to your
uncle. It wouldnt be an issue if your
uncle had predeceased your aunt.Then it
would be her will to enter probate and
you, as heir to your mother would have a
claim. But your aunt predeceased your
uncle and that changes things. It gives
precedence to his side of the family.
The lawyer: normally—at least this is the
idea when the beneficiary predeceases the
testator, a codicil is drawn up that
attaches to the existing will and, as
heir to the beneficiary—yourself—inserts
in place of your mother. That solves the
problem. That didnt happen here.
Yeah—too bad about that one.
Mark continued: My guess is you would
qualify as trustee for the estate and as
such receive a fee—in this case if the
estate as you say is in the neighborhood
of $400,000, would amount to $13,000 or
I said: thats a long way from $400,000.
He gave me a look: how true.
He said: its an unusual situation that
doesnt occur too often. Its called anti-
lapse. We take it in law school but that
was 20 years ago and the details escape
I said: Im going back to Los Angeles. I
must rethink this thing.
There is a book—How to Probate an Estate
in California—a Nolo legal publication.
He scribbled the title on some notepaper
and handed it over.
When you get back to Los Angeles you
might want to check it out.
Back to the apartment. The apt was small
but they lived there 35 years and there
was stuff, stuff, stuff. How Claire had
managed to find the wills lurking amidst
the clutter was a miracle. Now it was my
job to clear everything out, the
possessions of a lifetime of value to no
one but themselves. Normally I would have
hired a van and carted it all over to
Goodwill or the Salvation Army but I
didnt have time for that one now.
I was armed with a supply of giant trash
bags and began in the bedroom. In went
the shoes and slippers and socks and
stockings and nighties and slips and bras
and pants and panties and shirts and t-
shirts and sweaters and hankies and
goodj's woolen cap collection Frank
could have opened a store selling the
used eyeglass case and for Goodj it was
the woolen cap.
I grabbed a handful of Franks drawers and
felt an object buried within—a wallet. I
opened the wallet to find a stash of
twenties and started counting--100, 200,
300 and now there were fifties--400, 500,
600, 700. That was it.
Its funny—you stumble unexpectedly upon
$700 and are disappointed there isnt more.
Into the bathroom—the toothpaste and
dental floss, hairbrush, toothbrush,
eyeliner brush, tweezers, fingernail
clippers, eyebrow pencil and lipsticks
and after shave and bars of hand soap and
bath towels and wash towels and etc,etc.
Now for the kitchen where you wre not
going to find All-Clad or Le Creuset or
the Japanese chefs knife.
Its all the odds and ends-useless even
for Goodwill—the can openers and
potholders and boxes of toothpicks and
matches and refrigerator magnets and the
little wire twisties for tying plastic
I finished up with more odds and ends—a
money clip, two zippo cigarette lighters,
four umbrellas, an ashtray that weighed
four pounds embossed with a log—Tech High
circa 1953 when yours truly was enrolled
in something called foundry class
thrashing with these giant castings and
this ashtray was the result.
I spent 2 hours filling 18 trash bags
worth of belongings and rolled them 4 at
a time in a shopping cart out of the apt
and down the hall to the elevator and out
the building around to the back and over
to the dumpster.
I tossed it all. I left some kitchen
stuff—pots and pans and dishes and
tableware-- and furniture—the TV and
Franks Barcalounger, the bed, dresser,
mirrors and so forth—also some clothes—
jackets and coats, the golf clubs.
And with me I took: Franks swiss army
knife, an electric drill, Norelco shaver
and two boxes of photos including one of
them in their prime, circa 1943 with
Frank in uniform—home on leave. Here was
a medal—the Bronze Star—not an award given
out lightly. Frank was a hero.
The last trash bag tossed I rang the
I gave her $100 and said: Ive left a
bunch of stuff for Goodwill. You can
give it to them or sell it to the
neighbors. Now I am gone.
She said: his last days were so sad. He
just seemed lost.
I called Claire, left a message and drove
back to LA. Its a five hour drive and I
dont mind saying the entire five hours
were spent thinking one thought. The
will posed 2 possibilities: it was either
seriously flawed—as Mark the lawyer
seemed to think—that called for me to
resurrect the forgery scheme—or some
other solution was out there awaiting my
attention. Either way—there was a
solution. I was convinced of this and
refused to consider alternatives.
I wanted that money!
Back in Los Angeles I called Gene
Weisberg, friend of a friend, a lawyer
and I said: I have this will that
requires a second opinion. I dont like
the first opinion. Gene gave me a name,
Jerry Smith, a probate type in Marina Del
I called Jerry Smith to make an
appointment and then it was downtown to
the library to check out a copy of Nolos
How To Probate a Will In California.
At home I sat down to read.
The book is divided into sections
beginning with an intro that is followed
by a description of the probate process
and from there its on to heirs and
beneficiaries where I came across
something called Right of Representation,
also known as per stirpes and defined
as: the right of an heir of a deceased
beneficiary to claim the estate the
deceased beneficiary would have claimed
if alive at the time of the decedents
An example followed: “Lets assume John
makes a bequest to his brother Tommy but
Tommy predeceases John. Tommy has 3
children who are not mentioned in the
will. However, unless the will states
otherwise—i.e. to name some other
beneficiary in the event of Tommy’s death—
the children take the bequest by right of
Yeah—but Tommy was Johns brother—a
relative. My mother was Franks sister-in-
Now this passage occurs:
If the gift is made to a relative of the
deceased spouse of the decedent
the property passes to the heir of the
beneficiary by Right of Representation
I read this one again. I read it 3 times.
I replaced “gift " with $400,000, the
relative was my mother, related to the
deceased spouse, my aunt, of the
decedent, Frank, and the heir to receive
the money was Jack. Correct?
Who knows. I was a teacher not a lawyer,
my ability to interpret a legal concept
was zero and it was possible I had the
whole thing backwards.
Now followed a chart—something called
anti-lapse and how it works.
Wait a minute. Anti-lapse? That rang a
bell. Wasnt that a word that popped up
during my meet with Mark in Lafayette?
I examined this chart—a nest of boxes
with arrows pointing to other boxes that
you followed according to the answer
given, yes or no, in the preceding box.
You start with the box at the top and in
this box a statement: The beneficiary
fails to survive the testator.
Yes—that was my mother
Follow the yes arrow to this box—a
question: Does the will state who should
receive the property of the deceased
The answer is no which directs me to a
box with another question:
Was the deceased beneficiary a relative
of the decedent or the decedents deceased
Now its on to the last box, box #4, my
all time favorite box, that says:
The property passes to the children of
the deceased beneficiary by right of
That was the story—the anti-lapse story.
But what did it mean? Did it mean I get
the money? And if that was true why
did Mark the lawyer from Lafayette fail
to comprehend? I left his office and
wanted to put a bullet through my head.
On to Jerry Smith out in Marina Del Rey,
billing at the rate of $330/hr.
Jerry was early fifties, the beefy type,
dressed in shorts, polo shirt and running
shoes—the casual look. In LA we are
casual. We attend funerals in jogging
Into a conference room and I deposit both
wills on the table and say: Please dont
tell me these are useless documents.
He briefly studies the wills and says:
They look ok—for something written 45
years ago. What about some other will
that may be out there that post dates
There are no other wills.
I knew this for a fact. My aunt called
the shots in that family and especially
the financial shots and Frank was
obliged to go along. It was either go
along or face the consequences which
could be severe. In Franks case the
consequences were: no sex. My aunt was
the sweetest woman in the world but she
was Sicilian and there was a line you
crossed at your peril. There is no way
another will could have been written that
had anyones name on it but my mother.
I said: what about the fact my mother is
not related to my uncle. The lawyer in
Lafayette says its a problem.
Jerry considered this one.
I said: can I show you something?
I had a copy of the anti-lapse chart from
Nolo-with relevant boxes highlighted,
arrows redrawn in red marker and labels
scribbled in to identify my mother, aunt
Jerry studies the chart and gives me what
I would call a narrow look.
Is this California law?
Yes: Nolos How To Probate an Estate In
The narrow look continues and now he
says: Good for you Jack.
Those were his words.
Have I interpreted this correctly?
He stands and excuses himself. I will be
I didnt say: dont take too long.
Jerry was starting to get a little fired
up which I took to be a good sign
He returned with a law book and copy of a
section that he handed over. I read but
it was legalese and I failed to
Jerry said: its the statute from which
Nolo produced the chart.
I said: my question is: why didnt this
guy Mark up in Lafayette mention any of
this? I left his office and wanted to put
a bullet through my head.
Because, Jerry said, its a situation that
rarely occurs and yes its covered in law
school which is the last time it was
brought to my attention as well—25 years
ago. You know more about it than I do.
He said: this is the quick and dirty
solution. I will do some research—if its
ok with you—and see if there are any
Go ahead. But what about a lawyer? What
No—the expenses would be huge. The will
probates in Alameda county and you will
be much better served with a lawyer from
the area. I will give you a guy to call.
He is the best.
I left Jerrys office. This was
interesting. I had seen two lawyers,
billing their services at an
extraordinary rate yet it took me, Jack,
the writer/English major to bring to their
attention something called the anti-lapse
statute, California version, that,
applied to my uncles will, seemed to
interpret the will in a particular way, a
favorable way, big time, for yours truly
I called James Haverkamp--lawyer #3. In
one week I had established contact with 3
lawyers, to exceed the 2 encountered the
previous 70 years of my life.
I spoke to James Haverkamp who said he
would be happy to meet with me and a date
was set for the following week.
Meanwhile my spirits had improved. I
hadnt lived to the age of 70 without
learning a few things and at the top of
the list was: nothing is certain. And
twice as uncertain when the issue
is money. Its also called: not to count
your chickens. Remember Great
Expectations? But the urge to dwell upon
this one--the sudden prospect of
considerable wealth and to speculate on
the effect lifestyle-wise was powerful.
What would I do with the money? A good
question. Los Angeles was my home—where I
had lived 40 years. But it was a home I
had no affection for. When I moved to New
York in the sixties—and stepped off the
bus at the East Side Terminal—to look up
at that fabulous skyline and here was
this swarm of New Yorkers scurrying by in
an aroused state—and it took 9 seconds
for it all to register and I said: this
is for me.
Now—after 40 years in Los Angeles—I was
still waiting to speak those words.
From time to time I toyed with the notion
of a return to Buffalo where I still had
friends and spent a couple weeks each
summer. Buffalo had two things going for
it: it was 1) fun and 2) cheap. There
were some great apt buildings with some
fabulous pads within—the Dakota type pads
like on Central Park West in New York.
That was for me. But what about those
winters. Buffalo had a reputation for
hideous winters and the reputation was
correct. You dont forget weather like
The solution was obvious—to keep the pad
in LA and split my time between the two
cities. But money was the issue and I
could never quite swing it. Now that was
about to change—maybe.
Back to the Bay Area. I spent the night
at a motel in Alameda and met with James
Haverkamp the following AM.
He was out by the airport—another office
park featuring a reception area of the
cool type, designed to soothe and
reassure and convey the message that:
here you are covered.
But I was 70, as I say, an age where you
believe nothing until it happens.
I sat in reception and out comes James—
tall, early 5o’s, the handsome type and
one word and one word only to describe:
He wore slacks and to my well trained eye
for such things—a custom shirt and Allen
Edmonds shoes. Allen Edmonds shoes,
unless you happen to score for one at a
sale start at $300.
We shook hands and into a conference room.
I hand over the will and give a brief
rundown of the last weeks of my life—
adventures with lawyers—and the phenomena
of anti lapse—California version.
He looked the will over.
Who were these people—Mr and Mrs Shelton—
I dont know.
There is something called a self-proving
will—in which the witness or witnesses
swear under penalty of perjury that
the person executing the will is who he
or she claims to be and that this is
their signature. In your uncles will the
phrase “under penalty of perjury” doesnt
occur. Whoever drew up the will failed to
include this phrase. Why? I have no
idea. It was an oversight. But its an
issue—something the court would want to
clarify—either by contacting the
witnesses—if they are still alive—or to
present some other samples of your uncles
handwriting that can be authenticated.
You say your ex-wife assisted them in the
payment of bills. Would she be willing to
sign an affidavit to that effect—that the
signature on the will is the same
signature he signed in her presence?
Im sure she would.
What about your uncles family—siblings?
I said: I suppose there were siblings but
Frank never spoke of his family. I think
he was estranged from his father. He
married my aunt and her family become his
James: probate requires an heir search.
In this case, that would be applied to
your uncles side of the family. Whoever
turns up must be informed of the estate,
the will and what it provides for and
decide if they want to get involved—to
contest the estate.
By this time I had figured something out—
that probate work for lawyers fell into
two categories—preferred, and to be
avoided. They were paid not according to
the usual rate of $350/hr and up but
instead received a percentage of the
estate and as estates went anything under
a million was considered small potatoes.
James was showing a polite interest in my
problem but we were a long way from
But I liked the guy immediately and my
instincts told me that with him I would
be in good hands.
I said: I need a lawyer and Jerry Smith
spoke highly of you. Also you are the
third lawyer I have seen in 12 days and
if you would take the case I would be
spared the ordeal of meeting with a
That drew a laugh and he said. Maybe you
read in Nolo that probate is a leisurely
process. It can be done in six months but
in my 25 years of practice this has never
happened. The norm is a year.
He said: This Friday I leave for a two
week vacation—to Wisconsin. My brother
and I have been talking about a fishing
trip for 10 years and its now or never. I
could lodge the will before I leave but
it would make my life a whole lot easier
to do that when I return from my trip.
Fine. I can wait.
I had a question about the car. The car
was a '92 Honda with 65,000 miles in
perfect condition. Frank took good care
of his cars. I could get $5000 easy.
James said: The car is part of the
estate. You must wait until probate
clears and the estate is dissolved and
the court releases the assets for
He made a copy of the will, we shook
hands and I made to leave and he said:
not that door. You might get a bill.
You never know when you put yourself in
the hands of another to perform a service
what kind of service to expect but a sense
of humor is a good sign.
Back in LA I had nothing to do but wait.
Patience is a virtue I dont have. My
father was the worlds most impatient human
being and I tend to imitate him in this
regard. Plus I was 70. The end was in
sight. It could happen at any time. It was
possible that, following a lifetime of
labor I could suddenly hit the jackpot
only to be told I had 3 months to live.
That would be perfect.
Meanwhile I made a vow of silence—to say
nothing of any of this to my friends, not
a word, until this adventure was over,
decided in my favor and the money was in
the bank. Then I would host a dinner in
a cool restaurant—where an important
announcement was to be made. I would
stand and give them a cat who ate the
canary type look and deliver the
announcement: I am rich.
That was the vow of silence. It lasted a
Probate works like this. There are 3
filings and two hearings and in between
any number of administrative and other
chores to be brought to your scrupulous
attention and if your attention proves
less than scrupulous and one of the chores
goes unattended—or unnoticed—very easy to
do—its tough titty. Everything is re-
deposited into your lap and another 6
weeks goes into the toilet. Probate is
technical, the paperwork is staggering
and its the attention to detail that
prevails over all else. Its legal terrain
to be navigated with great caution and
expertise. It can be done, as Nolo
suggests, minus the services of a lawyer—
but you are asking for trouble. You need
your head examined.
Filing the petition.
The petition is a request for the court
to appoint an administrator (Jack) to the
estate. The petition lists any and all
persons turned up via the heir search—
known as heirs-at-law. These people are
then notified of the filing. The heir
search is a key element of the process
that provides a glimpse of what lies
ahead--the good or not so good. This was
my fear—not that some other will existed—
but some low life niece/nephew lurking
about out there would hire some low
life lawyer to contest the proceedings
and in this way draw things out for 2 or
3 years with myself lurching steadily
closer to assisted living.
How is an heir search performed? By
hiring an heir search person—in this case
senor Nushi--thorough and reasonable—
according to James Haverkamp at $600 a
Seven names turned up—two nephews, a
niece and four great niece/nephews--all
living in Buffalo.
The petition was filed 4 august and the
hearing scheduled for 18 Sept.
Meanwhile a bill arrived from Jerry Smith
to the tune of $693.00. The breakdown
was: 1.0 hours for the meeting in the
office equals $330.00; 0.60 hours for a
telephone call to James Haverkamp and
telephone call to Jack Spiegelman equals
$198.00 0.50 hours for receipt and review
of email from Haverkamp: email to client
and review of Witkin (anti-lapse case
with a dog as beneficiary) equals
$165.00. Also there were 2 other phone
calls and receipt/review of emails to
myself totaling 0.40 hours which he
threw in gratis.
I sat down and wrote a check to Jerry
Smith thanking him for his services. Its
Time passed—a week, then two, then four.
There was no word from Buffalo.
Then there was word. It was 16 Sept, 2
days to the hearing and a call from James
James: I have heard from Edward Walczak,
fiancé to Martha Dix, one of the great
nieces. He called this morning. He
wants to know why you—a non relative of
Frank Morrison, qualify as beneficiary
and not his fiancé. My reply was to brief
him on section 263 from Witkins summary
of California law—the anti-lapse statue
that provides for this discrepancy.
I said: now what?
James: this isnt something we want to
hear but we have heard it and must leave
it for these people to do what they will.
It changes nothing, I am confident of our
case and that you will be named
administrator for the estate. I will
write this guy Walczak a letter with a
copy of the statute.
That was that.
The hearing occurred and there were no
surprises. The will stood and I was named
administrator to the estate. Something
called a request for special notice was
filed by the Dix woman that required
myself as trustee for the estate to keep
her posted of all proceedings to occur
along the way—accounts of inventory,
filings, petitions, etc. She did not have
It meant the same thing it meant before:
a pain in the ass and whatever it
promised for yours truly down the road
was a question that would be answered at
But for now I was in the drivers seat.
The size of the estate was still a
question mark. Claire had frozen the
accounts following Franks death and
turned the account numbers over to James
Haverkamp but she wasnt privy to all the
statements. The figure we were
contemplating at this point was $400,000
plus but that seemed low. There were six
banks with seven accounts.
My first call was upon Bank of the West
in Koreatown three blocks from the house.
I met with Mary Yoon, produced my
drivers license and passport, copies of
death certificates of Goodj and Frank,
letter of administration, a phone call was
made to the legal dept for approval and
20 minutes later $101,099.76 had been
transferred into a new account—the
estate of Frank Morrison, John Spiegelman
Mary Yoon said: Now Mr Spiegelman you
must think carefully about this money and
what you plan to do with it.
I said: I have thought carefully about
it. I am going to spend it.
On to bank #2--US bank. Here the sum was
On to Pacific National. Pacific National
was headquartered in San Francisco and
there were no branches in Southern
California. I was obliged to call the
bank, put through to a guy named Tony who
said: that account has been closed.
I asked by who.
Tony said: that information is
confidential. I need proof of ID.
So I faxed everything over to Tony and
called the next day but he was in a
meeting. I left a message that he failed
to return. I called the next day and it
was more of the same: another meeting and
another non-returned phone call.
Something was going on but what? Maybe
the money from that account had been
transferred to some other account—the
checking account. I could have called
Claire but I set it aside for the moment
and moved on to account #4--Wachovia.
Here there were no problems and another
$104,549 added to the pot.
Next: Citi for $100,703 followed by Chase—
a two bagger: the CD plus checking equals
The pot stood at: $546.543
More thoughts about the pad in Buffalo,
furniture for the pad, a cool ride. I
liked that Beamer--the 335i--sporty.
I got a call from James.
Whats going on with Pacific National?
I explained: Tony was a retard.
Ill give a call.
3 days later.
James: I cant reach this guy either. I
want to have a 3 way conversation with
the bank. Can you stay on the line for a
He called the bank, got reception,
identified himself, myself, the problem
we both shared, the non-return of phone
calls and mentioned the word ”subpoena”.
Something about the word “subpoena”
produced a tonic effect and we were
transferred to Devon over at the Oakland
Devon: we were getting statements back
with no forwarding address and following
a waiting period the account was
escheated to the state.
James: I dont understand how this
happened but we can discuss that later.
For now I want that account returned and
reopened in the name of the Estate of
Frank Morrison with my client, John
Spiegelman as administrator. You should
have all the documentation you need.
I have it.
Also I presume the interest on this money
has continued to accrue.
Yes the interest is there.
James asked the balance.
Devon: the balance as of today is
Devon rang off and I said: thats a nice
Yeah—its called a pig in a poke.
The writer writes and he does so in the
hope that one day all this sparkling
prose will result in publication—the
cultivation of an audience. That is the
idea. But for this to occur you must
find an agent—someone to represent your
interests. I never found the agent. But
now I had James the lawyer—tough and
savvy with a superb command of the ins
and outs of probate and it was all in the
service of yours truly. I liked it.
Back in LA time passed. Now I had a
thought. Probate took forever but I was
70 and didnt have forever. I had money of
my own, a few bucks—not a fortune.
Probate wasnt a slam dunk but I liked my
chances and with this in mind I could
afford to start living it up a bit—not to
overdo it but treat myself to a few
goodies. So I ordered 3 art books on
Amazon and bought a cool peacoat from
Banana Republic and over at Sur Le
Table a Japanese chefs knife with the
partially serrated edge—very cool.
I booked a flight to Buffalo. A woman who
belonged to my investment group said: now
that you have money you must fly first
class. Once you do that you can never go
back to coach.Check out Air Tran.
I checked out Air Tran running a business
class special for an extra $300 round
trip. My friend was right. Its like night
I stayed at Holiday Inn. It was October
and beautiful. The leaves were turning
and it was cold but not too bad. And if it
got too bad I had my pea coat.
My first call was to Hunt Real Estate
where I met with Judy LoTempio, friend of
a friend, who said: what is your idea of
Me: the Dakota in New York.
Buffalo at one time was known as The
Queen City of the Lakes. It served as a
terminal for the shipping from the Midwest
carrying grain, meat and automobiles
passing through the city and on to the
Atlantic via the Erie Canal. It was a
blue collar town. There were 3 mills that
fabricated steel for Detroit. It was the
home of Trico that produced windshield
wipers for the cars made from the steel.
There was money and some fabulous houses
and apartment buildings.
That was then. Now the mills were gone
and Trico, all 700,000 square feet had
been rehabbed into loft space for yuppies.
The grain elevators remained in place
alongside the canal in a derelict state
like some gigantic movie set.
This was Buffalo—a city in decline. But
for someone like me— retired with money
in the bank—maybe—there were
Judy took me to 800 West Ferry—in the old
days the best address in Buffalo and
still none too shabby. It was a building
in the neo-gothic or Robber Baron style--
12 floors with some with some townhouse
type pads at the top.
We took the elevator to 9, the elevator
doors open and you are in the apt.
Judy gave me a look: will this do?
The pad was huge—2000 sq feet with views
south towards downtown and west to the
river. You could see the mist from
the Falls 12 miles away.
All the ingredients were there--a living
room, dining room, study, kitchen and
pantry for the kitchen, two wood burning
fireplaces. The master bedroom was half
the size of my apt in Los Angeles.
The price was 280K. This apt in Los
Angeles would go for a million two.
I said: I feel like Donald Trump in this
I had lunch with a friend. He spoke of
his son—Tristan—a lawyer.
He said: Tristan got interested in your
case and mentioned it to one of his
colleagues—a probate guy—and guess what?
I said: what?
According to the guy if your Uncle died
in Buffalo—you dont get the money. It
seems that New York takes the opposite
view of California, anti-lapse wise, so
that a deceased beneficiary unrelated to
the testator creates a roadblock and
everything grinds to a halt. The heirs-at-
law of the deceased beneficiary have no
claim to the estate. Everything shifts to
the testators side of the family. That
must be when the Jaskowiak woman and her
boyfriend decided to get involved. They
talked to some lawyer who made the
assumption the California statute was in
agreement with the New York statute
on this point and advised them
I let this one sink in. I said: its
called dodging a bullet.
Back to Los Angeles.
Time passed. I did some painting. I had a
show coming up—a group show I had no
desire to participate in for a good
reason—the slim to none chance of selling
work. It was a small neighborhood gallery
in NoHo—North Hollywood—not to be
confused with SoHo—in New York City. But
the owners were friends and I was obliged
to lend my presence. The show came and
went and I sold nothing.
Time passed. Time passed slowly. The
watched pot doesnt boil. James was busy
with another filing—an inventory of the
assets of the estate. That revived more
thoughts of the Dix woman and her
boyfriend. She and the boyfriend knew an
estate existed but that was all they
knew. The size and contents of the
estate were a question mark. Now that
question would be answered. What would
happen when this one—the size of the
estate—at 647K and counting—was brought
to their attention. They would be
gibbering like monkeys.
But of this, as James was in the habit of
saying, there was nothing to be done.
Time would tell.
The hospital bill
There were creditors to pay off--$126 to
Visa, a cable bill and 860 to the
hospital for franks last visit the
insurance failed to cover. This bill was
7 months old ands they had not been
heard from since. James mailed off a
letter to remind them of the money, that
the hearing to dissolve the estate was
drawing near and all creditors were to be
paid off at this time, etc.
We waited and there was no reply. Fine—
another $9800 I could put to much better
Meanwhile James had been doing some
research and turned up a case much more
complicated than my own involving three
families and sister-in-laws and brother-
in-laws and stepsons ect and eventually
resolved by invoking the California
anti-lapse statute. That gave me a boost.
Think about money for a minute. What is
the purpose of money? The idea to spend
it—and in a particular way—to derive
satisfaction. To buy life insurance, to
finance some root canal, to enter your
son into rehab, ect, etc—these are
expensive but non-satisfying.
Now Christmas was upon us and I decided
to give my friends daughter $5000. I did
it because I loved her and she was a
girl—like her mother—who knew how to have
fun. She was a recent UC Berkeley grad on
her way to Buenos Aires—to study Spanish
and do some teaching. I knew that in her
hands the money would be well spent. So
we all gathered at the house for the
festivities and I took her aside and into
I said: where is your purse?
I gave her the envelope.
Put this in your purse. Dont open it
until you get back to Berkeley. And dont
say anything to anyone—ok?
She gave me a sweet look.
She said: I love you Jack
Time passed. In Los Angeles I had a
routine that began with breakfast at the
Farmers market. I had coffee and read the
Times and, if the mood was upon me, did
some writing. My preferred spot was the
west patio featuring Tonys Pizza and
McGees Peanut Butter—with the giant
peanut butter machine and a picture—circa
1953—of President Eisenhower standing
next to the machine smacking his chops
over a peanut butter sample.
I was friendly with Marta who worked the
stall, a Latina, mother of 3 and sweetest
of the sweet. She was fond of me because
I saved for her the grocery coupons from
the Sunday Times and also showed her how
to open a combination lock—two turns
left, one turn right, left to the number
Now I had an idea.
I said: darling I need a favor. Last year
my uncle died….
Jack! Im so sorry!
Its OK—he was 90
I briefly described the situation—the
estate he left, rather large, that I
stood a decent chance of inheriting, etc,
but it wasnt a slam dunk and just to be
on the safe side a little praying wouldnt
hurt. Thats where she, Marta, came in. I
couldnt do it because I was me and the
request would fall on deaf ears but she
was Marta, the Latina, mother of 3 and
heaven bound, hands down, no questions
That was the pitch.
I said: I dont need the prayer every
night. Once a week is plenty. Throw it in
with the other prayers on Sunday.
She gave me the sweet look
Jack I would be happy to pray for you.
The last filing—the petition to dissolve
the estate and distribute assets—all to
Jack and no other.
The hearing was set for 29 April. James
Haverkamp said a year. He was short by 6
There was no word from the Dix woman. It
was my thought that, should her and the
boyfriend decided to take action they
would not wait until the last minute—
But who knew. The suspense was killing
I took a trip. I needed a distraction
from the ordeal of probate and booked a
flight to Florida. I had friends from
Buffalo who spent the winter in Florida
where they did the same things they did
in Buffalo—to eat, golf and play cards.
It was the eating that prevailed.
I stayed at the Crown Regency in West
Palm Beach. Been to West Palm Beach
lately? Its like living on the moon.
It makes Los Angeles look homey.
I was there ten days and the pedestrians
who appeared on the sidewalk could be
counted on the fingers of one hand. Its
condos, condos, condos and malls in
between the condos. The road is highway
95. It isnt a freeway. Its bigger than the
freeway. Its 12 lanes and the cars are
SUVs, a new model, the steroid model, and
they are all bearing down on my ass at 95
on the 95 and my thought was: I am going
to die in my car in this motherfucking
city and never get to spend that money!
Over to the Farmers Market for Breakfast
and I paid a call on Jim at Huntington
Meats. Jim was a Chicago guy, similar to a
Buffalo guy—and knew the story—the saga
Jim: whats going on?
Today is the day. The lawyer said a year.
He was off by six days.
I am happy for you. Dont go crazy!
I knew what he meant. But I was 70 not
40 or even 50. Then it would have been a
problem. I would be dead in two years.
I returned to the house. On the machine a
message from James:
You can sell the car.