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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and thank you for joining us for Episode 37 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are Georgia trial lawyers concentrating in the areas of nursing home abuse and neglect, and we are your co-hosts for this podcast. For those of you that are regular listeners and regular watchers of the podcast, you will know that we had a fantastic guest, the actual inaugural guest on this program. His name was Scott Fields and he talked all about the probate process when your loved one passes away at a nursing home or really passes away anywhere. We talked at length about heirs, things like that, and that actually got me thinking about a movie that Will is always talking about. In fact, he has this movie poster in his living room. When you walk into his house, this poster, giant poster – I don’t know how he got it. He must have worked in a movie theater because that is the only way he could have gotten it. It’s the movie, “King Ralph.”
Smith: With John Goodman.
Schenk: With John Goodman from like 1988. This is where like the entire royal family is electrocuted by a photographer, leaving John Goodman as the next, rightful heir to the throne of the King of England, and that was Will’s favorite movie of all time.
Smith: Hey, listen, I’m on a roll with this, Rob. It’s still my favorite movie of all time. I think it’s a phenomenal movie. It was Oscar-worthy and I think it really was groundbreaking in terms of cinematography and script for the time.
Schenk: It really came around at like the height of John Goodman, you know what I’m saying?
Smith: Oh yeah, this was Roseanne Barr, John Goodman, they were dating and they were always being mocked on Saturday Night Live.
Schenk: Yeah. Anyways, that was actually Tom Arnold.
Smith: Oh yeah, that was Tom Arnold.
Smith: See who knows?
Schenk: That’s right. So anyways, not to beat that point up, but anyways, we actually loved last week’s episode so much that we decided to have Scott back as the first second guest that this show has ever had. Will, who is Scott Fields?
Smith: Scott is a probate and real estate attorney in Tucker, Georgia. He graduated from Georgia State University College of Law – Georgia State University College of Law, that is our alma mater, and I felt like I said it wrong – in 2011. For about five years after that, he was a real estate, small business and probate litigator. He formed his own firm this past February and he focuses on estate planning and administration.
Schenk: Don’t call him a software engineer.
Smith: Oh yeah, the last time I mentioned that he was a software engineer, and he pointed out, “Guys, I was only briefly a software process engineer,” and that he’d get a lot of IT support. That just goes to show you that was a field of technological expertise that we don’t have, because I still don’t know the difference between any of those things.
Schenk: Yeah, maybe he’ll explain those at some point. But anyways, we are exceptionally glad to have Scott back. Scott, how are you doing today?
Fields: I’m doing well, thanks. Thanks for having me back.
Schenk: All right. So getting right down to the biz, this episode, I don’t think we got to everything we wanted to talk to last time, so this week I wanted to actually have you take us through some scenarios.
Smith: Yeah, and one of the things I wanted to start with right off the bat was something that we left off with last time, because I’ve had a lot of people inquire further with the process of what happens when somebody dies and you’ve got a surviving spouse and you’ve got children. One of the questions that we’ve got was, and this happens frequently in a lot of our cases. Let’s say that a nursing home resident dies. We get a settlement or a verdict. We’ve got money for the estate. And you have a surviving spouse and you’ve got children, and one of the children has had nothing to do with the parents, has had nothing to do with the family, never visited Mom or Dad in the nursing home, lives in a different state, has never gotten involved, and the rest of the children are feeling rightfully indignant that, “Hey, you shouldn’t be sharing in any of the proceeds of this.” Can you give us a general 40,000-foot view of what do you in that situation?
Fields: Well sure. If there’s a will, it’s very simple, because whatever the will says is where everything goes, and it doesn’t matter. There are no conditions that are, well unless there are conditions that are put into the will, which is not common, but whatever the will says, that’s what happens.
Fields: If there is no will, then what takes over is what we call intestate law, and that’s determined by law instead. So if you’ve got one spouse and two children, and the spouse and one of the children were very involved in the person’s life, and the other one was not at all, it doesn’t matter. It doesn’t matter because the law would say that second child, who probably hadn’t seen Mom or Dad in 30 years, is still going to receive one-third of the assets that are left over. So again, those things simply do not get taken into account.
Smith: Interesting, because I can’t tell you how many times we have situations like that where somebody, the child will hire us, we’ll go through the process and we’ll discover that during our case, our litigation, that, “Hey, we’ve got a brother out in Oregon, but he’s never…” and there’s always the, “Well but he’s never been involved,” and I guess the reality is, “Hey guys, it doesn’t matter.” It didn’t matter that John Goodman was never involved in the British crown.
Schenk: That’s right.
Smith: King Ralph was still King Ralph.
Fields: Yeah, and that’s sad. I’m not saying that’s a good thing or a bad thing.
Fields: I have my opinions of course, but it is what it is. That’s what the law says, and I’ve got several cases that I can tell you where that’s exactly what happened, and people who, again, in other people’s opinion did not deserve to receive a dime, received everything or almost everything.
Schenk: So what happens when there is an heir you know exists but you’re unable to get a hold of that heir. The King Ralph guy in Chicago, we know that he’s walking around, but maybe he lives off the grid, something like that. What’s the process when that happens?
Fields: Sure. So in Georgia, the court would appoint somebody called a guardian ad litem. If you identify someone in the petition, and you should, if you identify someone in the petition whom you know is an heir, but you cannot contact them, you do not have their information, you don’t know where they are, then you tell the court – it’s part of the petition – and the court will appoint and attorney who does not work for the court. So actually I have been appointed quite a few times. It’s called a guardian ad litem. And that person’s job is simply to try to find what we call the unknown heir.
And you’d be surprised how helpful Facebook is. I’ve found several people doing that. If the family is a little bit older, you can use Ancestry.com. I’ve been able to do that. And really what both Facebook and Ancestry do is put you in touch with people who might know. So there may be an aunt or a second counsin twice removed who you would have never thought to contact or you may not have their immediate contact information, but you send them a little message through Facebook or through Ancestry.com, and they’ll say, “Oh yeah, I know there was Jimmy and Johnny, and they live in Des Moines.” And that’ll help you a lot of times get in touch with that person.
Schenk: I guess I never thought about that – social media makes the world smaller.
Smith: Yeah. It’s a good way to track people down.
Schenk: So okay, that makes sense. Let me throw this at you – this is another hypothetical. What do you suggest – what do you recommend for an individual, the son or daughter of a nursing home resident that has passed that’s not on good relations with any of the other siblings. The siblings have different ideas of who treated Mom better, who treated her worse, who’s entitled to whatever. Is there anything you would advise, whether it’s mediation, counseling or whatever that would facilitate the letters of administration being drawn up in the quickest, most painless way possible? Like Rob, I advise them to go seek individual counsel. I’d advise them to go and sit in a room with padded walls and padded bats and they beat each other until they get it out of their system. What do you recommend?
Smith: And just to unpack what you’re asking him here, we’re talking about a situation where we’re having somebody petition the court to be the administrator and there’s bad blood.
Schenk: Yeah, bad blood. Taylor Swift. Katy Perry.
Fields: Sure. So the first thing I recommend is people talk to each other, at least make the initial contact, because people will sometimes call me and they will basically have decided in advance that they’re not going to be able to talk with the other person – the other person is not going to be reasonable. I would normally recommend that someone go ahead and make that phone call. Let them know what’s going on. Let them know that you’re planning to file a petition or that a petition needs to be filed because you want to get ahead of the game. You want to get in advance of creditors, in advance of somebody else who files it, because if nobody files the petition, then the estate doesn’t move forward, and those assets just sit there. And if you got a house and the mortgage needs to be paid, then you need to pay that mortgage or else that house is going to be lost to foreclosure and you’ve lost a significant asset of the estate.
So first, I encourage people to go ahead and talk. If people have talked and things are just not going well, then what I recommend is go ahead and file a petition. Just file it, because that usually will get everybody else to kind of wake up and take notice, because a lot of people have in their mind that if you do nothing, things just stay the way they are. So if you file that petition to probate the will or petition for the letters of administration, then that will usually get people to wake up and to start, hopefully start talking about what needs to happen. But even if they don’t, filing the petition begins the process. And once the legal process begins, someone can delay it, but it’s very, very difficult to halt it completely. But you can’t end if you don’t begin.
So talk it out. If talking it out doesn’t work beforehand, and I would not recommend spending a long time on that – maybe a month – that’s just my personal preference, go ahead and file it and hopefully that will either spur a conversation or the other person will simply ignore it and you can just move on.
Schenk: That makes sense.
Schenk: I mean, it’s almost in some instances, like you were saying, it’s like a race against the clock if there are creditors. You want to get out in front of that.
Fields: Yeah, I mean again, everything in terms of what assets exist, what debts will be paid, how things will be dispersed, all that is according to law, so a lot of the fights that I see are people think, “Well if I’m the administrator, I get to decide what goes where,” and that’s not true. If there’s a will, it goes according to the will. If there’s no will, it goes according to the laws of intestate succession, which is basically the law that says this much goes to this person and this much goes to this person. So a lot of times once everybody realizes that, the fight just goes away.
Now if there’s really bad blood and it doesn’t, eventually the court will hold a hearing and the judge will decide who gets to be administrator, and then you just go from there.
Smith: There’s a really famous – I think we joked about this before – there’s a really famous Charles Dickens book called “Bleak House” that has to do with a fight over an estate that ends up just decimating the estate – of course I hit the microphone – decimating the estate, and because of the contentious of the heirs, eventually there’s no – spoiler alert for anybody who hasn’t read Charles Dickens yet – that there’s no money left in the estate. Hey, I’m sorry that wasn’t a John Goodman 1998 reference, but it’s still a very famous reference.
Fields: Yeah, and that’s the first Dickens book I ever read actually. It’s one of the only – “Bleak House.” And that’s not necessarily what would happen in Georgia because the cost of fighting that sort of battle would not immediately come out of the estate itself.
Fields: You can get some of those costs recovered from the estate – the administrator can, but I have not yet seen something like that where both sides are taking out of the estate as it goes, and the estate goes away and everybody just simply stops and walks off.
Smith: So here in Georgia, people have to pay to play. They’ve got to pay for their own attorneys if they’re fighting these estate issues.
Fields: Yes. And there are some times when the administrator can recover those costs from the estate. Sometimes they can’t – it depends on what the fight is over. It depends on the circumstances of the dispute. But the administrator can recover. The non-administrator generally cannot, and again, that’s all very general. There are circumstances where either or both can happen.
Smith: And just as a practical matter to explain to our listeners and viewers, when we’re talking about an estate, let’s say there is an administrator of an executor set up, what type of bank account, like where is that money held for that estate? What is the estate? Describe what an estate is.
Fields: Sure. So the estate is – it’s a little difficult to understand. It’s a bit like a corporation in that it is similar to an entity. So it’s a thing that has certain rights and certain responsibilities, and that’s not 100 percent accurate, but it’s a good approximation.
Fields: So an estate generally is the collection of the person who’s passed away, of their assets and their debts. That’s really it. That’s the estate. The estate is the assets that they have and the debts that they have when they pass.
Smith: And where are those assets held?
Fields: Well, before the estate is probated, the assets are where you were. If it’s a house you owned, it’s the house that’s sitting there. If it’s money that you had in the bank, it’s the money in that person’s bank account and checking account. Once the estate begins to get probated, the job of the executor or the administrator is to collect those assets to move them out of the decedent’s bank account and put them into an estate bank account. Part of the probate process is the administrator, the executor, setting up an estate account. And a lot of banks, you walk in, you’ll say you need to set up an estate account, they’ll know exactly what that is. But the assets, when someone passes away, they remain where they were the day before they passed away.
Schenk: So Scott, let’s back up a little bit more. What are, like literally, what are letters of administration like? What does the paper look like? What’s contained in it, the actual content of it?
Fields: So letters – there are two types of letters, we’ll get to that in a second – letters are basically orders from the court, so it’ll have in it things that other court orders will have. Basically the judge signs something or the clerk will sign on behalf of the judge that says, “This person is the administrator,” or “This person is the executor and they have these types of power or these types of authorities,” for letters of administration. If there’s no will, then you would receive letters of administration. There are additional points on the letter that say whether or not the person has to have a bond, whether or not that person has to file reports or give an accounting to the court. There are circumstances where the person does not have to do that thing, and there are circumstances where the person does.
But I mean it’s basically an order. It’s an order telling the rest of the world, “This is the person who has the court’s authority, the legal authority, to carry, to deal with the estate, to take those assets out of where they are, put them in an estate account, disperse them, use them to pay debts, and the authority to settle those debts in a lot of cases.
Schenk: Does something have to run in the newspaper? Is that like old school?
Fields: Yes, you do. There are two things that generally run in the newspaper. When you first file a petition, you have to notify all the heirs, and just in case you missed anybody, you run a notice. The court will usually contact the paper, the legal paper, and publish a notice saying, “Hey, so-and-so has filed this petition. You have until this date to get an objection.” Whether anybody reads those or not, I don’t know, but it is what it is. That’s what the law says. So that’s the first time something runs in the paper.
The second time something runs in the paper is after the person is appointed as the executor or the administrator, you publish what’s called a notice to debtors or creditors, and this is what people pay attention to, usually the lenders. They just comb through these, and when they see somebody that owes them money, then they send in a claim. And the notice to debtors and creditors is just that. It says, “Hey, this person has passed away. So-and-so has been named the executor or is the administrator, and if you want to file a claim, if you want to say, ‘Hey, this person owed me money,’ then you need to send in a written notice,” and gives the executor’s and administrator’s address – “Here’s how you get in touch with them.”
And again, this is usually banks or it’s credit card collectors. There are companies out there where they buy these debts and this is what they do, and they will watch for these notices in the newspapers. They’ll send in written claims and then you hold onto those until the time comes to pay those debts. Those are generally the two.
Schenk: Right, right, right. Do you have an understanding as to whether a potential lawsuit that would lead to recovery is an asset of the estate?
Fields: Yes, if the person who passed away has a lawsuit or has a claim, then yes, that is technically an asset. It’d be just like if the person had loaned somebody else money, so let’s say for example I loaned my brother some money and I passed away and I’ve got that note written down somewhere, then my estate would collect on that debt, would collect according to that note.
Schenk: So – go ahead.
Smith: I actually had a question because we kind of glossed over something and I know that I’ve encountered this before and it’s been an issue for people. You mentioned earlier that there may be a bond that’s necessary. What do you mean by bond?
Fields: Sure. When someone passes away and they’ve got assets, the executor or the administrator is basically what we call a fiduciary. It is a person who has very specific obligations to the other people, so it would be towards the other heirs for example. So someone is asking to be appointed administrator, then they are going to be handling money that does not belong to them, and so that person has an obligation. And to protect the people that the money belongs to, the court will normally require the person to post bond. So if the assets of the estate are $100,000, then the court will say, “You need to go get a bond for $100,000,” and you’ll call a bonding company and you’ll tell them, “I need a probate bond,” and generally the bonding companies know what those are. And again, that’s security in case the administrator takes the money and runs off to Belize or whatever, then the estate can get their money and somebody gets to go after the guy in Belize.
Smith: What happens – because some of our clients are in different socioeconomic levels, what happens if they don’t have any money or nobody in the family has any money or any assets?
Schenk: Yeah, does that make the process quicker?
Smith: Or does it make it slower?
Fields: No, it makes it more difficult. I’m actually dealing with a case where that has happened. So sometimes, you do get or you can get the cost of the bond, that I don’t know if you call it a premium. You can get that paid out of the estate. It’s one of the costs of administration of the estate. So you can get that back.
So if it’s an issue of I’ve got enough in my savings account to cover the cost of the bond, but I was going to use that to go to Disney World in a couple years, well pay it. You’ll get it back. It’s generally what I recommend for people. If you just simply have no money whatsoever, you can go to the court and you can ask, “Hey, can I get the bond waived?” or and what we’re doing in the situation that I have now is you ask that instead of the person that’s appointed the administrator of the estate, then you ask for the county administrator. And each county has an attorney or some attorneys who act as the county administrator, and their job is to be a neutral administrator, and they have to have, by law, they have to keep on tap a bond, and that’s who you’d get to be the administrator instead. And again, because all of the paying of the debts and all of the dispersion of the assets is done by law, again it doesn’t matter.
Smith: It doesn’t matter. Yeah, I feel like a lot of our clients have not really understood that. The one thing that I will say though is it does, when we have an administrator, they do get involved with how we settle the estate, whether or not we settle the estate. But yeah, I feel a lot of people fail to realize that the administrator isn’t just saying, “Hey, you get some money and you get money and you get a car.” No, no, it’s – like Scott is saying – it’s by law.
Schenk: And Scott, one more question before we wrap this up, with regard to that, the estate, how long does it take, and does it ever close – so in this example where a loved one has come into our office with a potential claim for negligence against a nursing home for causing a death, that claim is held as an asset by the estate, so when does the estate actually terminate its business? When does it conclude it’s business?
Fields: Sure. Well it concludes its business when everything is paid out, basically, and that can take months, that can take years. I’m trying to think offhand the longest estate I’ve seen open, and you’re talking – I just remember it being over a decade. And so what happens is someone’s named the administrator. They publish this notice to debtors and creditors. They publish it for four weeks. After that, the creditors have 90 days to send in claims. And then you start paying off the claims. Once you start paying off the claims against the estate, then you can disperse the assets.
In a situation like you guys deal with and you have a lawsuit and that lawsuit may take a while, they just leave the estate open. It’s not a problem. And once all the assets – because a lawsuit, because a claim is an asset of the estate, the administrator, the executor has an obligation to go after it and to do the best that they can. But basically once those assets, once those claims have been made or the statute of limitations have run, so all the money that could be coming in has come in, you disperse the assets and you close the estate.
Schenk: Excellent. That makes sense to me. Scott, just my understanding is it’s extremely likely that you first started reading Charles Dickens because you went to your public library or maybe it was assigned reading in your middle school or high school. In fact, for Will, he discovered Dickens through a type of “the gods must be crazy” scenario where a plane, a guy was piloting a small cargo plane and dropped, by accident, the book from his plane and it landed in Will’s mountain village. And at first, he was using it to help scratch his back. He was trying to eat it and realized he couldn’t eat it. He was using it to prop things up in his house and finally he realized it was in fact a book and in fact a classic book.
Smith: And that is how we discovered language in Sautee Nacoochee.
Schenk: In his town, right. At any rate, Scott, we appreciate your experience, your knowledge in this episode with regards to loved ones who’ve had people in their family pass.
Smith: Absolutely, man. You’re amazing as always.
Schenk: We hope to have you back. You were the first and second guest ever on this show, so we hope you wear that badge with honor.
Fields: Oh, I do. I do.
Smith: Absolutely man. And again, if people want to get a hold of Mr. Fields, his number is 404-532-9953. That is the best way to get a hold of him because he is older and, like he says last time, he doesn’t respond to Tweets or Snapchat or Instagram. But it’s 404-532-9953 or you can go to sbfieldslaw.com.
Schenk: And just again as a CYA, nothing you heard on this podcast or any one of these podcasts should be considered as legal advice for your specific situation.
Schenk: This is given in a general educational and informational purpose only, and that is on behalf of both Will and myself as well as Scott Fields. And on behalf of Scott Fields, myself and Will, we hope you enjoyed this podcast and we will see you next time.
Smith: See you next time.
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