Episode 102

What does “Probate a Will” mean in Georgia?

 

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We often throw the words “probate” and “estate” around without much thought to their actual legal definitions. What is the probate process and how does setting up an estate of a deceased person affect a potential nursing home case? In today’s episode, nursing home abuse lawyers Rob Schenk and Will Smith talk about the Georgia probate process with Georgia probate lawyer Scott Fields.

Schenk: Hello out there and welcome back to the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are your hosts for this podcast. This podcast, we are going to be talking about probating a will and what that entails in the state of Georgia. That is, I would say, top 20 questions that we get. After this happened, this happened, this happened, then it’s like the next thing, if there’s been a passing, is what do we need to do in terms of probating the will? What does probating a will even mean? Does it mean going to court? We got to sue somebody? So this is going to be a very informative episode. We, as always, well not as always, probably 50-50, by a preponderance of episodes, we’re going to have help with the subject matter.

This is one of Will’s favorite guests and mine – I made it seem like only Will, like I have something against him, but I don’t. It’s one of our favorite guests, Scott Fields, who this is – I’m implementing a new program into the podcast because it’s January – fun facts about the podcast, because after two years, we’ve acquired some. But Scott, before we introduce him, Scott was actually the very first guest that we had on.

Smith: Oh, I guess he was.

Schenk: Yeah. He was the first guest. We had him on September 18th of 2017. It is now January of 2019. That was Episode 36, if you’re interested in going back, and he was on the next week’s episode, 36, 37, talking all good things about Georgia probate law and we’re glad to have him. But Will, for those who weren’t listening all the way back, the people that are like just now fans, they don’t know the first album, can you tell the audience who Scott is?

Smith: Yeah. So Scott Fields, and just to help out, I’m going to read your liner notes here that Scott is pronounced just like Scott Baio.

Schenk: Scott actually wrote that. That’s why I put that in there because Scott actually has a very good sense of humor.

Smith: Scott is pronounced just like Scott Baio from the TV show “Charles in Charge,” and Fields is pronounced just like in the song “Strawberry Fields Forever.” Scott is a probate real estate attorney in Tucker, Georgia. He’s married and has four grown-ish sons. Scott grew up in the Atlanta area and has lived in Tucker for over 20 years. He graduated from our alma mater, GSU College of Law in 2011.

Schenk: Go Panthers.

Smith: And for over five years, he has been a real estate, small business and probate litigator. He formed his own firm in 2017 focusing on families with probate estate issues and dealing with inherited property. Scott’s a great guy, extremely knowledgeable. He’s kind of a geek. Before he got into this, he was in – and I remember this from the show, he said, “Don’t call me a software engineer.” I forget what it was he complained about. Anyways, as an uneducated…

Schenk: It was. We wanted call him a software – no, I don’t remember. All the people that are interested in that should go back to Episode 36.

Smith: Yeah, he made a big deal. He’s like, “That’s not what I did. My friends will give me a hard time.”

Schenk: All right, but we’re happy to have him, and Scott, welcome to the show.

Scott: Thanks very much.

Schenk: All right. So Scott, we have you back on the show once again for the third time because we want to talk about the concept of an estate when there is a will to probate. And we want to really approach this from a 40,000-foot view. Many people out there, a lot of our clients have no clue what the word “probate a will” actually means, what an estate is and that are those things they’re trying to accomplish. So could you just really walk us through what’s an estate, what’s a will, what they accomplish?

Smith: What does probate mean?

Schenk: Yeah, what does probate mean?

Scott: Sure. Let’s start there. Probate, it’s a little confusing because it actually means “to prove,” it comes from the Latin, and technically probate is presenting a will to a court and asking that court to approve it, to look at it and say, “Oh yeah, this is fine. Go ahead.”

The confusion comes in the court itself is also known as the probate court because it takes its name from having to deal with probate issues, with estate issues, with proving a will, and then actually the most confusing comes with the fact that a lot of people talk about probate as being the process not only of carrying out the will, but also dealing with estates where there are not wills. And I’m guilty of this as well because you want to talk to your clients in normal English and use terms they want to understand, so a lot of times, we’ll talk about probating estate, which technically is not correct, but again, when you say “probating estate,” your average person knows what you’re talking about. So that’s what probate is. Probate is just kind of the process of dealing with an estate.

Schenk: I’m a lawyer and I’ve probably been using that wrong, “probating an estate.”

Scott: Yeah, you don’t need to change your habits. It’s really not that big a deal. Only probate lawyers are going to really get sticky about that.

Schenk: So you’re sitting around the office with all the other probate attorneys like smoking cigarettes going, “Oh, that Rob, talking about probating estates again.”

Scott: We do that all the time. We talk about you guys constantly.

Schenk: There you go.

What is an Estate in Georgia?

Scott: An estate is technically it’s a collection of the person’s assets, the things that they own, and their debts, which is kind of what they owe, when that person dies. Technically at the moment a person dies, they own things and they owe things, and that collection of those things, the assets and the debts or the liabilities, that is an estate. And so the process of dealing with an estate, some people call it again the estate process or they call it the probate process, that whole process is simply dealing with collecting the assets, paying off the debts or the liabilities, and if there’s anything left, handing that out and distributing that to either the heirs or the beneficiaries.

So that’s what an estate is and that’s what the estate process is. It’s really – there are a lot of things we can’t deal with. We can’t deal with the emotional aspects of someone dying. We can’t deal with certain aspects of some legal processes, some of those legal liabilities go away as soon as someone dies. All we can deal with really through the law is kind of paying off all the debts, collecting on the assets and handing those out.

It’s just like other areas of law, right? You guys deal with nursing home abuse and neglect. You can’t bring someone back. You can’t make someone not miss their loved one. All you can really do is help them get some money to punish whoever did something wrong and help compensate in some way for their loss. Same thing with the probate process. We deal with stuff, and I hate to say it that way, but it’s true. It’s what it is. It’s all lawyers really can do in most cases.

Is an Estate necessary if the deceased had no assets?

Schenk: Right. Well speaking of recovering money or there being a process of acquiring money, that kind of thing, what’s the point of an estate if the deceased has no money and no assets? What’s the purpose of doing it at that point, then?

Scott: Sure. So if there are absolutely no assets, if there’s nothing, if the person doesn’t have a dime to their name, there’s no bank account, there’s no personal items of any value, all the jewelry is costume jewelry that would probably sell in bulk for $10, their clothes are similarly, you could sell the whole thing for 10 bucks, there’s no house, no car, if there are zero assets, absolutely zero assets, and I’m going to get in trouble for saying this, there’s really no reason to probate an estate or to go through that entire process. It’s going to cost you a few hundred dollars just to file the petition and then you’re going to have to contact all the creditors and say, “Hey, there’s nothing there.” So if it’s going to cost you more to go through the process than it will be to hand anything out, you really don’t need to go through that process.

Now the problem is that a lot of times, people will look at an estate and go, “Ah, they’ve got nothing.” Well they have a car. Well they had $1,000 in the bank. Well they had a really nice set of diamond earrings, and unfortunately, those things need to be taken care of. So actually determining whether or not there are assets in estate, there are a lot of things that are technically assets and the estate should be probated, even though the families think that they don’t want to, they don’t want to pay off grandma’s credit card debt. They want that nice diamond earring set to go to one of the family members. And if there are sufficient debts that would wipe out the estate, unfortunately you’re going to have to deal with it.

So the big issue is making sure that there are not any assets at all, and if there’s not, and talk to a probate attorney just to make sure, but if there’s not, you really don’t need to probate the estate. If there are, if there are assets, then most of the time you need to probate the estate. There are, of course, exceptions, because this is law and that’s how it is and you’re going to get the “it depends” answer, but yeah.

A personal injury claim may be an asset of the Estate in Georgia

Schenk: So yeah, just to interject there, when it comes to the idea of bringing a claim for nursing home abuse or neglect on behalf of the person who has deceased, that would technically be an asset of the estate, so in that instance, even if that individual, we’ll just say hypothetically has zero dollars and zero assets, that claim against the nursing home is itself an asset and would require an estate to be established. But I want to go back, Scott, to…

Scott: Yes, and that’s true, just so you know. That is true. Someone’s legal claims that does survive their death, those are an asset of the estate. I’ve got several cases like that right now where the person died and had nothing at all to their name. The house automatically went to their house, all the credit cards were in both of their names, bank accounts were in both of their names, etc., etc., etc., but there’s a neglect claim or there’s a medical malpractice claim, so that is an asset of the estate and you do need to probate the estate, even if you don’t have that money yet, for reasons I think we’ve talked about before, but you do need to probate the estate if there is a legal claim.

Are next-of-kin required to set up an Estate?

Schenk: And let me just go back to this really quickly, Scott, and I don’t know if this is something we have the answer to at our fingertips or not, butwhat is the legal requirement of a next of kin if there is no will, or maybe if there is a will, to probate something or to establish an estate? You know what I’m saying? Like who’s the government going to come after if there is assets and they’re like, “Well I’m not setting this up because I don’t want them to take Granny’s pearls?”

Scott: Sure, that’s a good question. So first of all, let me clarify, the government, this is Georgia, we don’t really have an estate tax, and the government doesn’t get stuff. I get this all the time when I do wills with people coming in and it’s nice of them, it’s a smart thing to do when they get a will, but they come in and get a will because they’re told, “If you don’t get a will, the government gets all your stuff.” Well that’s hardly true.

If you or the person who dies owes taxes, then of course the government is going to be one of the creditors that is going to come after the estate, make a claim against the estate. So if there is a will and there is a named executor, then the executor is going to be the person who has the responsibility and is actually the only person who can bring the will to the court to begin the process of probating the estate. If they choose not to, they really don’t have any penalty. The court is not going to throw you in jail or fine you, well I’ve never seen that happen. But what will happen is one of the creditors can come forward, or one of the beneficiaries if there’s a will, will come forward and say, “There’s a will. There are assets, and we need to go ahead and probate the estate. The executor is sitting on his hands. They’re not doing anything, and so we need to go ahead and get on with this process.”

It’s very similar with administration, which is what we call it when there is no will. So if any creditor can go to the court and say, “Hey, we need to administer this estate, we need to go ahead and get this process started,” and when there’s not a will, there’s no real person who has the obligation to do it.

What happens when more than one person attempts to administer an Estate?

Now if there are competing petitions to administer an estate, there is a priority, like spouse, if there’s not a divorce pending, children, other family members, etc., etc., etc., but creditors, and we see this sometimes with homeowners associations, where there’s a lien, someone dies, and the heirs, the beneficiaries just sit there because they know that if they probate the estate, they’re going to have to probably sell the property and pay off the HOA lien. So I’ve seen this sometimes where we’ve been approached by an HOA and they say, “Hey, we need to go ahead and probate this estate so that we can get paid off,” and so all that’s to say there’s really not a responsibility in the sense that someone will get in trouble if they don’t probate the estate, but if they don’t, the creditors can come forward and force the issue and even name somebody that you don’t want to administer the estate in order so that the creditors can get paid off.

Schenk: So generally it’s going to be somebody’s going to have an interest, whether that’s a creditor or beneficiary to see that thing administered.

Smith: And contrary, because I get this too a lot of times, people are really worried about it, but it’s almost in Georgia, it’s never going to escheat to the government, like I think we did a podcast on this where we referenced “King Ralph,” you know the movie?

Schenk: Oh yeah.

Smith: They’re going to find somebody in your family to give it to.

Scott: They’re going to try to. They’re going to try as hard as they can. There is a point at which the state or the court will say, “Hey, look. This stuff is out there. We can’t find Johnny Jr. We tried everything we can.” So eventually it does go somewhere. I’ve never had that situation come up because either we’ve always been able to find somebody or because the family kind of runs off with everything, again, which is bad, but people kind of – I tell my clients don’t do this, but every once in a while, they’ll say, “Hey, we can’t find Johnny Jr.,” and come to find out, “Oh, that car went to Cousin Anne,” or “That got sold and that money’s already been spent.” So don’t do that, but it does happen.

What happens to an Estate if the deceased had no will?

Smith: And there is, so people understand, there is a statutory framework if you die intestate without a will. There is a statutory framework to tell the court where things should go.

Scott: Yes. Yes. A lot of people get this wrong or are confused about this where people think whoever is named as the administrator or as the executor gets to decide who gets what. I’ve even had people tell me they think, “Well if I’m the administrator, I get everything,” and that’s just not true. There’s always a legal list of who gets what. If you die with a will, the will itself is that list, it says, “This goes to this person, that goes to that person.” If a person dies without a will, well then there are laws for that too. There’s a statute. It’s the spouse and the children. They divide it up with them with weird math. If there’s no spouse and no children, then it gets spread out in shares to this group of people,” and so on and so on. So it’s never – well not never – it’s 99.99 percent of the time, the administrator and the executor have to follow particular rules about who gets what.

Schenk: Let’s go to – let’s take you back to law school exams. From a technical standpoint, what is a will? Can it be an email? Can I write something on a piece of paper and give it to Will to put into a safe?

Can a will be made with video in Georgia?

Smith: Can you record something on your phone?

Schenk: Yeah, or video it?

Smith: Yeah.

Scott: Not in Georgia. So different states have different requirements. This is why it’s a good idea to get a will if you move to a different state, but in Georgia, a will has to be written, it has to be signed by the person who’s making the will, called the testator, and it needs to be witnessed by at least two witnesses who have to be disinterested adults who are in the same room at the same time. They watch the testator sign. The testator sees them witness. So we don’t have – people talk a lot of times about handwritten wills and holographic is the technical term for it, but a handwritten will in some states, the fact that it’s written by the person in their hand is sometimes sufficient in other states so that you don’t need witnesses. So usually you call a handwriting expert and the handwriting expert says, “Yes, this is Aunt Jane’s handwriting.” We know there’s no witnesses, but this is definitely her intent, well then the court, again, in other states, will admit that will to probate and say, “This is the will. Here you go.”

In Georgia, the fact that it is handwritten does not overcome the need for there to be two witnesses. Now can the will be handwritten? Sure. As long as it is written, signed and witnessed properly, then it’s a good will. But it has to be those three things. It has to be written. It has to be signed by the testator. And it has to have two witnesses.

Schenk: Is there any, to your knowledge, Scott, is there any push to change that to if I’m sitting in front of my video camera, my telephone, I don’t have time to get a notary in or two witnesses that are disinterested, but like if I just want to do it on video, is there any type of legislative push to get that law changed?

Scott: I don’t know. I don’t know whether or not there is. There’s always some kind of – it seems like there’s always some kind of push to make this easier. The problem is that, especially with handwritten wills, there’s a lot of opportunity for fraud and the process in Georgia, at least, really seems to me to be set up as much as possible to avoid fraud. So it makes it a little bit harder to create a will, makes it a little more difficult to probate a will than it would be, maybe if you were not trying quite so hard to avoid fraud, but avoiding fraud, avoiding having things go to people that it should not go to is pretty strong in Georgia. So I don’t know that that’s going to be overturned any time soon. Georgia’s pretty – I think we’re pretty happy about where we are. Now I could be wrong. They could overturn this in this upcoming January.

Schenk: We’re holding it to you. We’re holding it to you, Scott. We’re holding you to it.

Smith: And I think that for me, the important element of what is required for a will in Georgia is that there are two disinterested witnesses.

Are witnesses required to make an enforceable will in Georgia?

Scott: Yeah.

Smith: So if they were to ever change it to, “Hey, you can record yourself,” it’s still going to have those two disinterested witnesses, because the whole driving force behind this is what was the intent of the person writing the will. If they’re on a video camera, what was going on? Was there somebody with a gun on the other side of the camera saying, “This is what you need to say, “Aunt Shirley?” But if you have two disinterested witnesses, that’s your evidence. “Yup, I saw her make this recording. I saw her write the will. Nobody was holding a gun to her head. She seemed like she knew what was going on.”

Scott: Yeah, so a couple of things. We talked about disinterested witnesses. That’s kind of the idea. There are situations where a person who receives something under a will can witness the will, but they, I believe the current law is they don’t get what they would have been given under the will. So if I’m there and my mom can only have me and one of her neighbors to witness the will and she leaves me 10,000 bucks and I’m one of the witnesses, well I don’t get my 10,000 bucks. I think it used to completely void the well. I don’t think it does that anymore.

So the whole point of a will is to let everybody know what your intent is about your stuff. That’s why a handwritten will, again, in some states, is considered valid because they really, really want to make it as easy as possible to have someone say, “Here is where I want my stuff to go.” With video wills, I don’t know whether or not witnesses are required, again, because you’re looking at a person, quite obvious hopefully it is that person, in the age of computer graphics, you new kids with your fancy computers, I’m sure it would be possible to make somebody look like somebody else, but again, I don’t know if witnesses need to be there or not for a video will. But yeah, the whole process, once you start getting away from having actual people in the room actually watching what’s going on, every step you take away from that, in my opinion, makes it easier for someone to make a fake will.

Schenk: Yeah, that makes sense. Well Scott, earlier you mentioned in a hypothetical, someone passed, there’s credit cards or bank accounts and there were insurance policies in that hypothetical. Can you speak about what would be handled in terms of the assets or debts that go through a will versus things that are outside of that probate process?

What assets are handled outside the probate process?

Scott: Sure. So a lot of financial accounts, most insurance, well not homeowners insurance obviously, and probably not auto insurance, but life insurance especially, and a lot of investment accounts have what are called designated beneficiaries, and when you sign a contract with that company, you say, “Hey, when I die, I want the money to go to this person or to this company or into this trust.” If that is what you’ve done and if that person or entity exists when you die, then that money goes to that person or that entity, goes directly to them. It does not pass through probate. It does not pass according to the will. It just goes straight to that person. So when I’m creating wills for clients, one of the things that I tell them is, well first thing, go back and double check your designated beneficiaries, make sure you’re not giving money to your ex-husband or to that crazy uncle that you found out is not so great of a person, but also if you’ve got a designated beneficiary as one of your minor children, you probably want to change that. You want to set up a trust, probably in your will, or set up a trust when you’re alive, and make sure that that money goes into that trust, especially if you’ve taken all this time and effort into your will to create a trust for the purpose of not dumping a ton of cash on somebody who’s under 18. Make sure that your beneficiary goes to some place that you want it to go. So all that passes outside of probate.

Generally what’s going to go through your will are things that you own that you don’t have some sort of external contract already that it goes directly to someone instead of passing through probate. Insurance passes outside of probate usually. Financial accounts and beneficiaries, IRAs, etc., those pass outside of probate.

Now one wrinkle in that is sometimes people will designate their estate as a beneficiary. In that case, that money does go into the estate and does pass through probate. So it’s certainly possible to do that. Another situation where that would happen sometimes is when you designate a beneficiary and that person dies before you. So I’m dealing with a case right now where a husband named his wife on his retirement account. She was the only beneficiary named and he didn’t have a backup, and of course, she died before he did and so now we’re having to probate the estate to deal with one, with just one IRA. And he had gone through a rather lengthy process before trying to make sure that all of his other accounts didn’t go through probate, and they just for some reason missed this one, so now we’re having to deal with that.

Schenk: That’s sad. Well Scott, let’s do this. Let’s say that someone out there that’s listening has recently had a loved one pass. They know that there’s a will so there’s no issue about, “Let’s go search the house and see if there is a will.” They go to the house. They see the will. The will is in their hand. What’s the next steps?

Scott: Sure. So there is a legal requirement to file the will with the court. So if you think it’s going to be a long time before you can probate it, if there’s stuff to deal with and family members and you don’t think you can start the probate process soon, and by soon, I mean within a few months, then you take the will to the probate court and you say, “Hey, I need to get this on file just so it doesn’t get lost or somebody doesn’t steal it,” and so you can go ahead and do that. It’s actually a misdemeanor I believe to not file a will. If you find a will and it’s the original and you don’t take it to probate court, I mean it’s a slap on the wrist – you’re not going to jail, but it’s still criminal, so go ahead and do that. Most of the time what happens is someone finds a will and then they go either online to the probate court’s website or they come to an attorney or they walk down to the court, and they go ahead and begin the probate process. And so the probate process on the legal side begins with filing a petition with the court.

Schenk: Scott?

Scott: Yeah.

Schenk: Let me throw in there real quick because we skipped a step – how does the individual with the will know what court to go to?

How to determine what county to probate an estate

Scott: Sure, that’s a good question. It is generally going to be the county in which the person lived when they died, the county of last residence. So most of the time, that’s easy, like, “Oh, she lived in DeKalb County. We probate in DeKalb County.” There are some exceptions of course because this is law. If someone is in a long-term care facility, and that’s not really defined, unfortunately, but if someone is in a long-term care facility, then you may need to probate it in the county where that facility is. Short-term care, like someone lives in DeKalb but unfortunately they get into a car wreck in Fulton and they get taken to Grady Hospital so that they can get really good care, then if they’re just in the hospital for a week or two, then no, you would not probate it in Fulton. You would still probate it in DeKalb because that’s the county where they lived.

The other big exception is you can probate a will in a county where someone owns personal property. So I’ve had a couple of cases where someone has died actually living in Mexico but they owned property here in Georgia, and so rather than have to learn how that works and contact a Mexican attorney, we just simply probated it here in Georgia in the county where the property, so that made life much, much easier.

Schenk: And when you say property, you’re talking real property, not like a car.

Scott: Yes, real estate. Yes, real property, sorry.

Schenk: Okay, so now we’ve got the will. We know which county to go to and they’ve gone to the court. They’ve filed the appropriate paperwork. What’s next?

What are the steps to start the probate process in Georgia?

Scott: So you file the petition. And there are a lot of little steps involved in getting people served. You always have to let the heirs know, even if the heirs are not mentioned in the will, you still need to let them know because the heirs are the people who would receive the assets if the person’s will is not valid, so they have to have an opportunity to look at the will and say, “Wait a second, that’s not my grandma’s signature. That’s something else.” So they always get that opportunity, which means you always have to notify the heirs. They have to get served with a copy of the petition. If there’s a will, they get a copy of the will as well.

So you make sure that everybody gets notified and then eventually, hopefully, the court will issue letters. If there’s a will, those are called letters testamentary or sometimes testamentary depending on who you’re talking to. If there is no will, those are usually called letters of administration, and those are basically an order from the court saying, “Okay, go. You now have the authority to do these things. This estate is set up. It’s ready to go. The will is valid,” that sort of thing. So that’s sort of the big – it’s not the end goal, but it is, in a lot of situations, it’s what you’re trying to get. So it’s kind of the brass ring in that sense. So for example, for you guys, in order to move forward with the claim, you have to have an executor or administrator, and so once you’ve got that person appointed by the court, once they have their letters, then you can move forward with your claims and you can call the insurance company or however the process works there.

There is more after that, so after someone is appointed as the executor or the administrator, then you have to publish a notice to debtors and creditors, and that runs for four weeks and you wait 90 days for the claims to come in, and then you get towards the end of the process, you pay off the claims. If there’s money left over, you disperse the assets, and eventually you petition for a discharge. Like I said, there are a lot of little steps in the middle there but those are the big steps.

What is the duty of a creditor to notify the Estate?

Schenk: Let me go into the weeds a little bit. What’s the duty of the creditor to find out if there’s an estate. So you’re saying on a typical probate process, you say, “Such and such a person is deceased. This is the notice in whatever, the newspaper or the organ of the county that you’ve filed that notice.” Do you have to do anything else? Do you have to call the major credit card companies and go, “Hey, do you have this person on file?” or anything like that? What’s the duty of the creditor and the duty of the administrator to find out if there is debt?

Scott: Sure. So no, let’s start with the administrator or the executor. If you don’t – if you’re not sure that there’s a debt, if you haven’t received a statement in the mail or nobody has sent in a claim during the claims period, no, you don’t have to call Chase and Wells Fargo and Capital One. You don’t have to contact all those people and say, “Hey, we just want to make sure you know. We just want to make sure.” That is the purpose of the notice to debtors and creditors.

Now those big companies will usually, they will pay attention to the legal notices. So like I said, after the person is appointed the executor and administrator, they have to publish a notice to debtors and creditors. Those get published in the legal newspaper of that county and so the big debt collection companies or the credit cards or mortgage companies or things like that, they pay attention to those legal newspapers. And so that’s how they get notice of someone’s death and someone’s been named as the administrator or the executor of an estate.

If, and this is a little more fuzzy, if you have received a statement in the mail, so one of the things I tell all my clients is after someone dies, you need to watch their mail for at least 30 days because what’s going to happen is you’re going to get bank statements usually and you’re going to get credit card bills and that sort of thing. Any kind of bill, any kind of statement, you’re usually going to get those, you get those monthly, so if you watch their mail for 30 days, you’re going to get a good idea of what’s there, and that’s another way you’re going to understand what your claims are that someone might bring.

Schenk: That makes sense.

Scott: If one of those creditors sends a bill and then doesn’t send a claim in, that’s a question of whether or not do you have to pay that? And I always tell people to go ahead and pay it because what happens is just because someone doesn’t send a claim in within that claim’s period of 90 days doesn’t mean they can’t come back later and say, “Hey, wait a second, this person died. There were assets. You guys dispersed those assets to people and we didn’t get paid off.” And they can actually back up some of those transactions. If there was money that was handed off to heirs, then they can go to those heirs and say, “Hey, guess what? Cough it up.”

Smith: Wow.

Schenk: Yeah.

Scott: You need to give that money back. So if you know there’s a claim, if you know the person who died owed some money to somebody, just put it all in a folder until you get to that point at the end of 90 days and then go ahead and pay those off.

Schenk: So it feels like if it was like Wells Fargo, they’re going to find out.

Smith: I’m positive all of those big places have subscribed to a service that goes through everything.

Schenk: But if it’s like Randall from two counties over who loaned Grandma $20,000, he’s probably got more of a – he’s probably going to lose if he’s not paying attention.

Smith: Yeah.

Schenk: But anyways, Scott, let’s come back… Go ahead.

Scott: Yeah, because Randall’s not going to read the Fulton County Daily Report. Nobody really does.

Schenk: He only reads TV Guide.

Scott: Sure, but not the legal one. Randall’s not going to do that. To what degree is it Randall’s job to keep in touch with somebody he loans $20,000 to? Well, again, technically the estate owed that money, so if he doesn’t find out about it during the probate process and the checks get written to the heirs or the beneficiaries, and Randall comes back later and goes, “Hey, wait a second. She owed me $20,000,” well you know, you’re kind of in trouble. But the executor administrator may not be personally responsible for not paying Randall off. If they knew about it, then maybe.

Schenk: Yeah.

Scott: If they didn’t know about it, if after all good faith efforts to find all the debts and the assets, something new pops up, then you’re going to have negotiations with Randall and say, “Hey Randall, listen. Here’s how much money we’ve got. Here’s how much we can get back in a year.” That’s not super common by the way.

Schenk: That’s okay. Scott, let’s come back out of the weeds. I think that we have another excellent informative episode in the can now. You’re coming up – this is your third appearance and you’re coming up on one of our most frequent guests, so we appreciate your knowledge and we’re glad that you had time to come on the show with us and share some of that knowledge.

Scott: Sure, thanks. I’m always happy to talk to you guys and let’s keep doing that. That’s fun.

Schenk: Heck yeah. Awesome man. Thank you very much, Scott.

Smith: Appreciate it, man.

Scott: Sure. Thanks guys. Have a good day.

Schenk: Bye-bye. What a wonderful, great, excellent…

Smith: Informative

Schenk: …informative, pleasant…

Smith: I think that what Scott does and having Scott on here is one of the most informative – is always the more informative episodes because these are practical questions that people always have. The other ones may be things they need to know, but people, if you’re an attorney, at some point, from the time that you graduate law school to the time that you are lowered into the grave, somebody in your family or your friends are going to say, “Hey, can you do a simple will for me,” and I’m always like, “Guys, there’s no such thing as a simple will,” and there are a lot of rules involved.

Schenk: Well there is one simple Will in here.

Smith: All right. He’s talking about me. But it’s always informative having somebody like Scott who’s a master at what he does explain the intricacies of the probate process because that and taxes are the only two things that are certain.

Schenk: Yeah, Scott was excellent. He was great. He was fantastic. This is where I was going with this originally, is that Thursday is…

Smith: Is National Compliment Day.

Schenk: Is National Compliment Day.

Smith: Yeah.

Schenk: I just thought I’d throw that in there.

Smith: Okay, well let me give you a compliment. Everyone really appreciates your hard calendar work there.

Schenk: Yeah, thank you. Thank you. And also Saturday – you know what Saturday is? Without looking at the thing in front of you?

Smith: Oh, your birthday.

Schenk: That’s right.

Smith: You turn 41.

Schenk: 41. Cuarenta y uno.

Smith: Wow.

Schenk: Isn’t that crazy, dude? When we were playing in a band, this is – okay, this is like playing in a band, working at O’Charley’s and working at Tower Records, those are my goody-bag of stories to go to, but we were all between 20 and 23, I think. There are a drummer for another band who was 29, and we called him Granny.

Smith: Oh yeah.

Schenk: Because he was so old at 29.

Smith: Yeah.

Schenk: And now I’m 41.

Smith: Yeah.

Schenk: It’s crazy.

Smith: Well dude…

Schenk: Okay.

Smith: I was about to say in the military, which I guess is my version of “I was in a band,” but like you would be 19 years old and you would have a staff sergeant who I assume now looking back, 32, but I thought that he was the oldest person that I knew, like…

Schenk: “You must know my parents, because my parents are also old.”

Smith: Yeah, like, “You’re 32?” Now I look at somebody who’s 32 and I’m like, “I don’t know if I would date somebody that young.” I would.

Schenk: Anyways, with that, we’re going to conclude this particular episode of the Nursing Home Abuse Podcast. You can consume each and every episode every Monday morning in two different capacities. Number one, you can listen to the audio, the MP3 form of the podcast, wherever you get your podcasts from, iTunes, Google Play, Stitcher, Pod Puppies.

Smith: I think that they’re actually going to create a Pod Puppy.

Schenk: I hope they do.

Smith: Because you keep saying that.

Schenk: I hope they do. And then otherwise, you can watch the episodes on our YouTube channel or on the website, which is NursingHomeAbusePodcast.com. And with that, we’ll see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Nothing said on this podcast, either by the hosts or the guest, should be construed as legal advice, nor is intended to create an attorney-client relationship between the hosts or their guests and the listeners. New episodes are available every Monday on Spotify, iTunes, Stitcher or on your favorite podcast app as well as on YouTube and our website, NursingHomeAbusePodcast.com. See you next time.


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