Probating The Family Feud
Author's note: This is a story I wrote back in 2004 -- but it is still worth re-posting because the dangers we come across in probate court are still lurking.With trepidation, I opened the large manila envelope from my sister Susan. I hadn’t heard from Susan in years. She used to beat me up when we were kids and we had mutually avoided each other every since. I looked inside the envelope and a bunch of legal documents fairly sprang out at me. And horrible, hurtful and lying words such as “took advantage of my father’s failing health, passed the blame onto us, bloodsucker, appalling, allegedly, despicable…” flooded the page. “Absolute distortion of the facts, absolute fabrication of the truth,” the litany continued.
I couldn’t believe my eyes. My sister, who had conveniently been too busy to visit my father during the last years of his “failing health”; too busy to visit him in the hospital; too busy to help him dismantle his house when he was forced to move to a retirement home; too busy to visit him there…well. My sister and her lawyer-husband now had plenty of time to sue me for his estate. And it looked like they were going to get away with it too.
How did all this craziness come about? With the clarity of hindsight, I can now see exactly how. “I want you and your children to inherit my estate,” my father had told me on his deathbed. Slowly and hesitantly he had asked me to write his wishes down, one by one. But he hadn’t gotten them witnessed…
Both my father and I made some big mistakes regarding his estate. Please learn from our mistakes. Here are ten of them:
BIG MISTAKE 1: NOT MAKING A LEGAL WILL.
If someone is in the hospital, even if someone is young and healthy and doing push-ups in the triathlon, everyone should have a will.
Years ago my father, Alexander Bridgewood, hired a lawyer to establish a trust and a pour-over will for his heirs (a pour-over will allows for anything not specifically mentioned in the main trust to “pour over” and become part of it automatically upon the death of the trustee).
“Here is the breakdown,” my father told me. “Your sister Susan will be second trustee after I die. You will get 15%, Susan will get 25% and Rachel (my daughter, his first grandchild) will get 20%. The other grandchildren can have the rest”.
“A trust is a good thing,” I then explained to my younger children. “It sounds a bit more complicated than a will, but its principle is the same: Pop has money. Pop uses it when he’s alive. Pop leaves what is left when he dies to whoever he wants to have it. And the sweetest, best part of it all is that, the way this trust is set up, we get to avoid probate”.
Then last winter, my father gave me a call. “My last heart attack was a little too close for comfort,” he said. “I’ve written a new will”. This was a wise move. Writing a new will allowed him to give his money to his heirs according to his current wishes. “I’ve named you as executor,” he continued, “but I’m not naming any specific heirs: I want you to just distribute my assets according to instructions I will give you later”. This was our first big mistake. A will, to be legally valid, must name specific heirs, either in the will itself or in a codicil. A codicil is an addition or amendment to a will.
“This will is self-proved,” Pop continued. “That means it was properly witnessed. Two of my neighbors witnessed it today.”
That was good. A will usually needed two witnesses and witnesses could not be beneficiaries. Even still, we should have had him hire a lawyer to check this will or we should have had him use a will form, available from Nolo Press or a stationery store. As it is often difficult for heirs to tell their parents what to do, I should have advised him. But I didn’t.
BIG MISTAKE 2: ASSUMING THAT RELATIVES WILL HONOR YOUR WISHES AND NOT TAKE YOUR HEIRS TO COURT
Pop continued to describe his will. “It has a no-contest clause and also has a clause giving anyone who claims I died intestate the sum of one dollar. That will keep Susan and Jimmy from contesting it.” Susan had stopped speaking to my father seven years before, when Pop had re-married. Her last words to him were, “If you marry her, who will put my children through college!”
And now Pop was worried that Jimmy, his lawyer son-in-law, would try to contest his will. I didn’t think Jimmy would. I assumed that, even though they had feuded with my father, Susan and Jimmy would want to honor his wishes. That was our second big mistake. When money was involved, my father’s wishes didn’t matter; Susan stood ready to drag us — and herself — through probate hell.
BIG MISTAKE 3: ASSUMING YOU WILL LIVE FOREVER.
Unfortunately, this is just not true.
Two nights before my father died, I got home from work and there were three messages on my machine. “You have to get down here. I need to tell you what to do after I die”. He thought he might be dying and I didn’t believe him, didn’t want to believe him. Even though he had lost over 75 pounds in the last year and was on oxygen and morphine, I assumed he would live for another 20 years. That was our third big mistake.
The next day, a doctor called me at work. “Your father is dying,” were his simple, honest words. I ran to the hospital.
Pop’s breathing was labored and painful but, responsible man that he was, he still struggled to make it easy on his heirs by delineating his estate. “Here is my PIN code. And here is the combination to my safe. And don’t forget to cancel Social Security and to call the Office of Personnel Management”.
I held his hand, climbed into the bed with him and shamelessly begged him not to die. Trying for levity, I asked him, “Hey, Pop! Do you see the light?”
“Forget about the light,” he replied. “Let’s get back to talking about the Bank of America.” I smiled at his reply. So typical of my father to try to care for his family even in the face of Death itself. Pop was an opponent equal to standing up even to the Grim Reaper.
Then, miraculously, Pop rallied. I went home all happy, thinking the crisis was past. Getting my father’s directive notarized was the last thing on my mind at this point in time. Yet another big mistake on my behalf.
BIG MISTAKE 4: NOT GETTING THAT CODICIL WITNESSED
That night, in the hospital, my father dictated a directive-codicil to me, five pages long. “Here is what I want you to do after my death,” he told me. “These are the instructions you need to have, as my executor, to complete the instructions in my will,” he told me. “Susan and Jimmy have their house,” he told me. “I helped put their children through college. They will be all right. I want to give my money to you so that you will be able to retire and to my grandchildren Matt and Amy so they can finish college. Your daughter Rachel is already well-fixed and should be okay”. I wrote down his words and went home to work up a clean document from the rough draft he had dictated to me.
He signed the document but I didn’t think he was going to die and make very little effort to get the document witnessed. “I can’t witness it,” the nurse on duty told us. “It’s against hospital policy. Why don’t you have it notarized?” I learned later that wills/codicils had to be witnessed, not notarized, and, anyway, I didn’t do either because I simply did not think he was going to die even though he looked just awful. This was a very big mistake.
BIG MISTAKE 5: ASSUMING THAT PROBATE IS A PIECE OF CAKE.
Several weeks before going in to the hospital, Pop called me every night. “I’m going to transfer some of my assets into joint ownership with Rachel and some into joint ownership with you,” he said again and again. This was a very wise move for him to make. He explained joint-tenancy to me. “Any money or property placed in joint tenancy goes directly to the heir who is the joint tenant. And no one can dispute it after I die because no one can get access to it without that heir’s written permission. And you won’t have to go through probate either”. Probate. There was that word.
“I want you and Rachel to have control of my bank accounts and Rachel to have my car when I die,” he continued, “and this was the best way to make sure you both get them. I just don’t want anyone to have to go through probate”. I still wasn’t very sure what probate was or why we should try to avoid it. That was another big mistake. One should always avoid probate like the plague.
“What is a prooo-bait?” asked my youngest daughter Amy, then age five. I couldn’t tell her. I didn’t know myself. Didn’t have a clue. I looked it up in the dictionary.
“Official proof of a will,” I read, “Whatever that means”. All too soon I — and my whole family–was going to find out — in excruciatingly painful detail — exactly what the word “prooo-bait” meant.
BIG MISTAKE 6: HEIRS THAT SPEND A LOT OF MONEY ON LAWYERS.
If your heirs are forced into probate and the estate is less than $100,000, please advise your heirs — from Heaven if need be — to settle it by getting some self-help books and/or by going Pro Per (In Propria Persona, which means representing oneself).
Less than a week after my father died, I got a letter in the mail. “Why would James R. Troth, Esq. be writing me?” I asked my daughter as I opened the envelope. “Petition for Letters of Administration,” it said. “Notice of Petition to Administer Estate and Petition to Establish Existence and Validity of Trust for an Accounting, for Hearing to Determine Location of Assets”. Those were fancy titles to documents that said, basically, “Give me the authorization (and the money) to handle Estate affairs. I want to be executor”.
I couldn’t believe it. Susan was asking to be named executor. Susan was actually suing me.
Further, my sister alleged I had influenced my father on his deathbed and “taken control of the assets”.
I was numb. “Oh. No. Not now, not so soon after my father’s death, oh no,” I mumbled. “Not now”. Now I not only had to deal with bureaucrats and clean-up and morticians. I had to deal with my sister and to deal with — and pay for — lawyers.
I started calling lawyers. Three or four attorneys flat-out told me, “You can not file your father’s will and codicil because of the lack of witnesses to the codicil. You must file the 1991 trust and pour-over will instead”.
“But what about my father’s codicil? What about his intentions? What about his wishes? Are they just to be ignored?” I cried. And cried. To no avail. Apparently, wishes and intentions and directives didn’t count for diddily in a court of law if they weren’t properly witnessed. I took the lawyers’ advice. Another big mistake. If there are a bunch of wills and directives and codicils, file them all and let the judge decide.
In the meantime, Jimmy subpoenaed my father’s bank records and God knew who else in search of Pop’s assets. Things were getting mean and out of hand. We found out later Jimmy had even hired a private detective to trail Rachel. Legal bills began mounting up at an alarming rate — all this over an estate that was worth $60,000 tops.
I then interviewed approximately 14 other lawyers, each of which had a conflicting view of how the case should proceed. The only thing they all agreed upon was that we should give both themselves and my sister bundles of bucks.
BIG MISTAKE 7: ASSUMING THAT YOUR HEIRS CANNOT POSSIBLY REPRESENT THEMSELVES
In the face of reality — I could not afford to hire a lawyer — I decided to go Pro Per. Scary. But it was better in a way. None of the 15 lawyers would say what I wanted to have said. They wanted to quote statutes. I wanted to have my father’s wishes honored. Big difference. And they all wanted at least $150 an hour. One lawyer had the good grace not to take the case because “I would have to charge you $75,000 on a $60,000 estate”.
I then took the offensive and became the “Petitioner” instead of the “Respondent” and I filed my own Petition for Probate, my own Petition to Administer Estate and, for good measure, a supplemental petition that would allow acceptance my father’s will; name me executor; show that my father’s estate was rather small; and to establish that Susan and Jimmy had claimed my father died intestate (without a will) so we could claim she was entitled to only one dollar. More than she deserved.
My “Wherefore” clause (in a legal document, a “Wherefore” clause is the summation of the demands made by the Petitioner against the Estate and/or the Respondent, based upon all evidence presented in the body of the document) was a beauty if I do say so myself. It was a work of art with all kinds of exhibits. And I even had it filed by Fax and File, an attorneys’ service that files your documents for you by fax.
Susan and Jimmy fought back and filed their objection. Not surprisingly, their “Wherefore” clause basically called for transferring all Pop’s assets to them.
“When pigs fly,” I said to myself. I no longer cared because I was Pro Per. “That means they can’t blackmail me into giving them bunches of money by jacking up my legal bills,” I told Rachel. “They are going to have to spend lots of time on the case now, time they could be spending on their paying clients. It’s not going to be as easy as they thought it was”. And they also discovered the truly small size of my father’s estate.
“I bet that they are going to want to settle to our advantage,” I predicted. A settlement is an out-of-court contract that ends a case in a manner satisfactory to both sides.
BIG MISTAKE 8: ASSUMING THAT GOING TO COURT WAS GOING TO BE EASY.
As the date of the probate hearing approached, Rachel and I planned what we were going to wear to Court. We were so calm and confident. Then, on the day before the hearing, a lawyer friend of mine asked, “Have you called up the court’s Tentative Ruling phone tape to see if there was a tentative ruling?” Gingerly, I took the phone and dialed. It turned out that a tentative ruling was called a “pre-grant” in probate court, and that, in the case of the Estate of Alexander Bridgewood, there was none. This was a good thing. I would have been too late to oppose it if there had been one.
“Have you prepared an order?” my friend then asked.
“What’s an order?” I replied.
“An order is another wish list, like a ‘Wherefore’ clause, that you give to a judge to sign–to either grant one’s wishes, or cross out what they didn’t want to grant”. Oh. I hurriedly designed an order, again asking for the moon.
At 7:00 pm that night I got a call from the Clerk of Department 17, telling me about a whole bunch of things that were wrong with my Petition, fatally wrong things. Tearfully I called Rachel. “The clerk said I didn’t check the box to request probate; that I didn’t arrange for a publication or prepare a Letters Testamentary request or file the original will. Jesus. We’re doomed”. So much for going Pro Per.
Rachel comforted me. “Well, no matter what happens tomorrow, at least all the gut-wrenching anguish and suspense will finally be over ‑- for better or for worse and we can get on with our lives”. Wrong again.
On the day of the hearing, we arrived at Department 17 at exactly 9:30 am. We went to check in with the court clerk. “Go down to the probate office one floor below,” he said, “and check with the probate clerk”.
The probate clerk read us the riot act. She gave us a print-out. “Here is a list of all the things you failed to do,” she stated. I got a sinking feeling in the pit of my stomach. Then Jimmy stepped up to the counter and low-and-behold the clerk read him the riot act too. Yes! He also made filing mistakes. And he was a real lawyer.
Properly chastised and quaking in our (high heeled) shoes (and nylons) Rachel and I took seats on the opposite side of the aisle from Jimmy and Susan. And there we sat as case after case after case was called. A parade of lawyers and heirs went up to the bar and then left.
Finally, at 11:45 am our case was called. We were the last folks on the docket. The judge looked at our bright orange portfolio, looked at us, and frowned. Her face was an open book and the pages were clearly saying, “Why are you wasting my time?”
She then listed all the myriad things wrong with our filing. She, thankfully, also included a chastisement to Jimmy. “This case is continued for two months”, she said. Boom. Just like that. The session was over and nothing was settled, nothing was proved.
“But Your Honor,” I timidly spoke up. “What about the Estate’s debts? What about the payments of my father’s mobile home? What about his income tax? I have bills to pay, stuff to be taken care of. Your Honor, we can’t wait two months to take care of all that.”
The judge considered me a moment and then said, “I am going to appoint a Public Administrator here”. It sounded good to me: An impersonal referee to handle the Estate. Jimmy agreed too. Nobody told me it would cost “the Estate” $200 an hour. And nobody told me that once a Public Administrator got a hold of your case, helpful and skilled as they may be, theirs was an appointment for life. And nobody mentioned that the Public Administrator, good intentioned as he might be, was too overworked to sell property, invest funds, pay taxes or anything else either. Another big mistake.
I continued to cancel Pop’s accounts, cancel his retirement income, apply (or try to apply) for reimbursement of burial expenses from the Veterans Administration, send out death announcements, pay off creditors, write thank-you letters for condolence cards. At the Office of Personnel Management and Social Security, there were a lot of “Please press 1″ messages and about a half-hour of wait time each time I called. Please be advised. There is a heck of a lot of paperwork and waiting time involved with death.
We then planned a testimonial dinner for my father, instead of a memorial, on his birthday. “Forget about the troubles,” I told myself. “Today is the day we are going put all that court stuff out of our minds and simply celebrate how lucky we were to have had Alexander Bridgewood for a father and grandfather”. Matt came up from U.C. Santa Cruz and all the relatives gathered: The Rotary Club was giving my father a testimonial dinner on this special day. “Thank you,” I told them all. “Thank you from the bottom of my heart”.
BIG MISTAKE 9: TRUSTING LITIGIOUS HEIRS
Rachel, who could not afford to take time off and fly up from L.A. once a month, called Susan and offered to settle for $22,000; a bargain. Susan said yes. Then Susan called Rachel again the next day. “We want $3,000 more than you offered. And we want no costs”. No costs meant that Susan would not have to pay lawyers, the Public Administrator or any of Pop’s estate expenses. It was a sweetheart deal for her. Rachel agreed to $22,000 and no costs just to be rid of Susan. But I was not willing to settle. I felt that Susan and Jimmy could not be trusted.
“Why should we give her bunches of bucks?” I asked. “Where was she when Pop needed her? And besides, we’d be taking a bath on this one”.
Rachel and I talked on the phone every night. “I still have to file an accounting,” she said. An accounting was an exact record of everything in an estate, where it came from and where it went to. The average lawyer charged $3,000 to do one. “And we still have to deal with probate which might possibly cost thousands of dollars in legal fees. If we could avoid all that, the settlement would be worth it”.
I did not agree. “What if Pop’s income tax needed large payments? What if he had large medical bills still to come?” I asked her. “The whole damn estate is only worth $60,000. Why should we give Susan a whole big chunk of that? You could be left with nothing. Nothing but bills”.
“If,” Rachel replied, “we can walk away from all this with no more legal work and no more lawyer fees, then settlement is a good idea”.
At 11:15 pm that night I am drowsily reading in my bed. Suddenly, Amy burst into my room, tears streaming down her face. “Oh, Mom. I had the worst nightmare. I dreamed that Grandpa was dying and some hand with a knife in it kept stabbing him and stabbing him and stabbing him,” she sobbed. “It was terrible. I tried to stop it but I couldn’t. The hand just kept stabbing Grandpa.” I held her and tried to calm her down. “I couldn’t see a face” she wailed, “just this hand, stabbing and stabbing.”
“It’s going to be okay,” I muttered. That’s when I decided to go along with the settlement. Another big mistake.
However, I still didn’t trust Susan so I also decided to file all the documents that the probate paralegal had recommended, including publishing my intentions in the paper, just to be one the safe side. Wise move.
One week later, I bought a copy of the Oakland Tribune from Fred’s Market across the street from where I work. Eagerly I checked the classified section, under Legal Notices. Yes! There it was! My name in print. “Petition to Administer Estate: Mary Elizabeth Bridgewood…” etc. etc. etc. The Public Notice deadline has been made. One more item to check off the list of things that must be done before April 26.
Now I had only to file the Letters, the Orders, the Proof of Subscribing Witnesses, and the Duties and Responsibilities. I knew about all this now because I had finally broken down and checked out Nolo Press’s How to Probate an Estate from the library. I called them up and told them so. “Thank God for Nolo Press! If only I had bought a copy of that book at the very beginning of this damn will contest ‑- or whatever the term for it is ‑- legal blackmail — we wouldn’t have had to be so stressed out”.
Now I was right on track. If the settlement fell through, which could happen considering my sister’s track record, then we would be sitting pretty when the court-imposed deadlines came. What was that quote? “Most lawyers have suffered near-death experiences trying to meet court-imposed deadlines.” I was beginning to understand that.
I also called Michael and his friend Helen McDonald. “Pop told you about signing the codicil didn’t he?” I asked them.
“Then would you sign a Subscribing Witness form saying just that?”
“Of course”. Good. Now hopefully we could get the codicil declared legal. If we didn’t settle…
The Public Administrator finally allowed me to start working on Pop’s taxes as it became more and more clear to both of us that he was not going to have time to do them himself. I then holed up in a law library and searched the reference books for how to compose a trust accounting. I got three or four sources and patched them together into a mosaic cutout of a document. There was no clear-cut accounting form ‑- there are usually forms for everything ‑- that I could just plug into my computer.
Finally I put together a pretty good document that supposedly had all the elements an accounting needed to have to be valid.
I started to work rounding up the documents I would need for the exhibits: Quitclaims, bank statements, escrow documents, etc. Rachel reluctantly signed the accounting and I filed it. More and more she was becoming set on the settlement. “I don’t have time to keep appearing in court,” she said, “and I am willing to pay to get it all over with.” I couldn’t argue. But at least the accounting was filed. And it hadn’t cost no $3,000.
Finally the day of the court settlement hearing arrived. Amy and I had a heated discussion on what to wear to court. We finally compromised. “You look lovely,” I said as she modeled her knit cotton top and her Pipes wide-leg blue jeans.
After all the struggles and hesitations and preparations, I was finally reconciled, sort of, to settling: We grinded our teeth and appeared in court. But the settlement was not to be. Jimmy had forgotten to file Amy’s Guardian Ad Litem papers! The case was continued for another two months.
“Not again!” I cried out in anguish to the judge, “Can’t you please just settle this case! Can’t you please just settle it today! I don’t think I can stand another two months”.
BIG MISTAKE 10: ASSUMING THERE IS AN END TO THE PROBATE PROCESS.
“I have to go by the books,” the judge replied, not unsympathetically, as she indicated with a wave of her hand a row of thick law tomes. Then, right there in the courtroom, I had a sudden, horrible epiphany. I suddenly realized that even the judge couldn’t settle the damn case; that probate was forever. The judge couldn’t stop it. Not even Susan and Jimmy had been able to stop it. And all my lawyers and not all my hours and hours and hours of Pro Per efforts had not been able to stop it either.
Suddenly I realized that this case had taken on a life of its own; that probate was unstoppable. The Estate of Alexander Bridgewood had suddenly, on April 26, 1999, become the case from Hell, damned to purgatory for eternity.
Sadly I left the courtroom, having finally realized that this case would go forever, that I would have to forget about the easy-way-out settlement and go back to good old Nolo Press and the law library and keep grinding out my Letters and Orders and Petitions until the end of time.
Then, as Amy and I slowly walked down the courthouse steps, I resolved to myself that if the law was taking this case so much further than even Susan and Jimmy had wanted, well, I would take it even further still. That night, I lay on my bed thinking. Then I had an inspiration. “Amy!” I suddenly called to my daughter in the next room. “Get yourself a court dress. We’re going to take this case to trial!”
Wise move? Big mistake? I’ll tell you later.