Probate Funding: A Useful Option for So Many (Part 1 of 4)

Probate Funding: A Useful Option for So Many (Part 1 of 4)

The following is a contributed article by Steven D. Schroeder, Esq., General Counsel/Sr. Vice President at Inheritance Funding Company, Inc. since 2004.  There have been a few recent articles written on the topic of Probate Advances.[i] Probate Advances are available because a handful of companies are willing to assume a risk and provide funding in return for a partial assignment of a beneficiary’s interest in an Estate, and to a lesser extent Trust Proceedings. One critic has conflated Assignments to Loans without a fair analysis of the many differences between the two legal maxims.[ii] This 4-part series expands upon those differences and provides a legal and practical perspective as to why Probate Advances are a useful option for so many. Why is Probate Funding Needed? Probate Funding is growing in importance due to the increasing percentage of the population (i.e. baby boomers) who die annually and have their Estates and/or Trusts go through probate administration. In theory, the process of distributing a Decedent’s estate should not be complicated. But in practice, administration is rarely quick and easy. Even simple or uncontested Probate administrations take no less than eight (8) months to a year to finalize, while the vast majority of administrations of Probate or Trust Estates take much longer. Due to funding and short staffing issues, many Courts set hearings months out even on uncontested petitions. Quite often, because of questions relating to the admissibility of a Will, the location of intestate heirs, and/or questions regarding those who may be an interested party, it can take a year just to have someone appointed personal representative.[iii] Moreover, once a Personal Representative is appointed, notice is required to be given to creditors which affords creditors anywhere from four (4) months to one (1) year to file a claim, depending upon the jurisdiction. Then, there is the tedious process of locating and marshalling bank accounts and investments, cleaning up and disposing a lifetime of possessions and/or marketing the Decedent’s real property. Rarely are homes sold within a year, even under the best market conditions. Some properties are occupied by holdover tenants or relatives. Even after the property is liquidated, the process of closing an estate through an accounting, setting a hearing and obtaining Court approval, can take many additional months even if the accounting is uncontested. Because of the inherent delays of administration, some heirs, who have pressing financial needs (i.e. debts, foreclosure, rent payments, et. al.), are relieved to know that there is a product provided by Probate Funding Companies which can solve their personal financial problems while probate is ongoing.[iv] Whether the purpose of the funds is to prevent foreclosure, pay rent, pay medical bills, pay household debts or pay for continuing education, it makes simple economic sense that individuals would choose to minimize their risks by obtaining an advance now by assigning a fraction of their future and undetermined interest in an estate, rather than waiting for months or years to receive a distribution. A Case for Probate Funding Vivian Doris Tanner died in Shasta County, California on April 22, 1997. Her May 10, 1992 Will was admitted to probate by Order of the Probate Court on June 16, 1997 and her named Executor, Earl C. Tanner, Jr. was issued Letters Testamentary with full authority under the Independent Administration and Estate’s Act.  Pursuant to the Will, the named beneficiaries were Helen L. Tanner (20%), Marsha L. Tanner (20%), Katherine L. Courtemanche (20%), Erla Tanner (20%) and Earl C. Tanner (20%). In February 2009, Robert Frey, an Attorney in Reno, Nevada contacted Inheritance Funding Company, Inc. (“IFC”) on behalf of his client Helen Tanner, a resident of Incline Village, because his client was experiencing hard times due to the crash of the real estate market. His client needed a significant influx of cash ($100,000.00 or more) in order to prevent the foreclosure of her properties while administration of her mother’s estate was pending. The only remaining assets of the Estate at that time were the Decedent’s interest in Tanner Construction, Inc. which owned a 20% interest in the Dublin Land Company.  IFC was informed that there was ongoing litigation with the Dublin Land Company, including a partnership dissolution suit and a partition action set for trial in the latter portion of 2009. After completing its due diligence, IFC approved funding a $100,000.00 advance for Helen Tanner in consideration of a fixed sum Assignment in the amount of $192,000.00.[v] Shortly thereafter, two (2) other heirs (Marsha Tanner and Katherine Courtemanche) contacted IFC and applied for smaller cash advances, which were also approved.[vi] During the course of administration, the Executor (Earl Tanner, Jr.) filed at least nine (9) annual status reports requesting continuances of administration until the litigation was resolved and the Dublin land was sold.  Finally, on or about November 23, 2017, the Third and Final Account and Report of the Executor was filed and set for hearing on December 11, 2017. The Account was approved, as were IFC’s three (3) Assignments, which were paid off in full on December 27, 2017, approximately nine (9) years after Ms. Tanner’s original $100,000.00 advance was funded.[vii] The Tanner case and others like it illustrate the inherent risk in Probate Funding. It took IFC nearly a decade to collect its Assignments in the Tanner case, while in many other cases the funder never collects. With that risk of non-repayment in mind, we now turn to the legal distinctions between Assignments and Loans. Stay tuned for Part 2 of our 4-Part series, where we explain the differences between Assignments and loans, with reference to relevant case law. Steven D. Schroeder has been General Counsel/Sr. Vice President at Inheritance Funding Company, Inc. since 2004. Active Attorney in good standing, licensed to practice before all Courts in the State of California since 1985 and a Registered Attorney with the U.S. Patent and Trademark Office.  —- [i] Horton, David and Chandrasenkher, Andrea, Probate Lending (March 24, 2016). 126 Yale Law Journal. 102 (2016); Kidd, Jeremy, Clarifying the ‘Probate Lending’ Debate: A Response to Professors Horton and Chandrasekher (November 16, 2016). Available to SSRN: https://ssrn.com/abstract=2870615; Lloyd, Douglas B., Inheritance Funding: The Purchase of an Assignment From an Heir to a Probate or Trust, Litigation Finance Journal (October 31, 2017), http://litigationfinancejournal.com/inheritance-funding-purchase-assignment-her-probate-trust/. [ii] Probate Lending, supra. Professors Horton and Chandrasekher, supra.  Article entitled ‘Probate Lending’. [iii]  In many instances an executor or proposed administrator who is a family member cannot qualify for a bond. [iv] IFC has been providing cash advances in the field for over 25 years. [v] The Assignments included a negotiated provision for early payoff rebates which reduced the assigned amounts to $140,000.00 and $166,000.00 if paid off within 12 and 24 months respectively. [vi] Marsha Tanner and Katherine Tanner each received advances in consideration of a $41,000.00 assignment and a lesser amount with early payoff rebates. [vii] Helen Tanner’s net distributive share was $661,532.00, less IFC’s Assignment, and an unrelated promissory note she owed to estate.
Secure Your Funding Sidebar

Consumer

View All

Three Sounds, Three Purposes: Understanding Consumer Legal Funding, Commercial Litigation Financing, and Attorney Portfolio Financing

By Eric Schuller |

The following was contributed by Eric K. Schuller, President, The Alliance for Responsible Consumer Legal Funding (ARC).

--

When people talk about third party litigation financing, they often lump everything into one bucket—as if every type of funding that touches the legal system is essentially the same. But that’s a misconception. The world of legal finance is much more varied, and each type serves a distinct role for a distinct audience.

A good way to understand the differences is to step away from the courtroom and into the world of music. Think of Consumer Legal Funding as a rock band, Commercial Litigation Financing as a symphony orchestra, and Attorney Portfolio Financing as a gospel choir.

All three make music—they all provide funding connected to the legal system—but they produce very different sounds, are organized differently, and serve different purposes. Let’s explore these three “musical groups” of legal funding to understand how they work, why they exist, and what separates them.

Consumer Legal Funding: The Rock Band

Immediate, Personal, and Audience-Driven

A rock band connects directly with its fans. The music is raw, emotional, and often tied to the lived experiences of ordinary people. That’s exactly what Consumer Legal Funding does—it provides individuals with direct financial support while they are waiting for their personal injury cases to resolve.

Most people who seek consumer legal funding have been in a car accident, or experienced some other harm caused by negligence. While their cases work their way through the legal system, they still need to pay rent, buy groceries, keep the lights on, and support their families. Consumer Legal Funding steps in to help them cover these day-to-day expenses.

Like a rock band that thrives on the energy of a crowd, Consumer Legal Funding is closely tied to the needs of everyday people. It’s not about abstract legal theories or corporate strategy. It’s about giving real people financial breathing room so they can withstand the pressure from insurers who might otherwise push them to settle for less than they deserve.

Flexibility and Accessibility

Just as a rock band doesn’t require a massive concert hall or multimillion-dollar backing, Consumer Legal Funding is accessible on a small, personal scale. A consumer can request a few hundred or a few thousand dollars to cover immediate needs, and repayment is contingent on the case outcome. If the plaintiff loses, they owe nothing.

This non-recourse structure mirrors the risk of a rock band going on tour—they might make money, or they might not, but the fans are there for the experience. Similarly, Consumer Legal Funding companies take the risk that the case might not succeed, and they may not get their investment back.

Critics and Misconceptions

Rock bands often face criticism for being too loud, too disruptive, or too unconventional compared to “serious” classical music. Consumer Legal Funding gets similar pushback. Critics sometimes argue it encourages frivolous lawsuits or drives up settlement costs. But the reality is the opposite—the funds provided to a consumer doesn’t fund lawsuits; they fund life necessities for individuals already in the legal system.

Consumer Legal Funding’s role is narrow but vital. Like a rock band giving a voice to ordinary people, it empowers individuals who might otherwise be silenced by financial hardship.

Commercial Litigation Financing: The Symphony Orchestra

Complex, Structured, and High-Stakes

Where Consumer Legal Funding is the rock band of the legal funding world, Commercial Litigation Financing is the full symphony orchestra—large, complex, and meticulously coordinated.

Here, the players are not individuals injured in accidents but corporations, investors, and law firms involved in high-value commercial disputes. These cases can involve intellectual property battles, antitrust issues, international contract disputes, or shareholder actions. The stakes often run into the tens or hundreds of millions of dollars.

Like an orchestra, Commercial Litigation Financing is structured and multi-layered. Each section—strings, brass, woodwinds, percussion—must work together under the baton of a conductor. In litigation finance, this “conductor” is the funding company, aligning investors, lawyers, and plaintiffs toward a common goal: seeing the case through to resolution.

Strategic and Long-Term

Orchestras don’t play three-minute songs; they perform long symphonies that require endurance, precision, and careful planning. Similarly, Commercial Litigation Financing is not about immediate cash flow. It’s about supporting a complex legal strategy over years of litigation.

Funds can cover attorney fees, expert witnesses, discovery costs, and even corporate operations while a case drags on. The financing enables companies to pursue claims they might otherwise abandon because of the sheer cost and duration of litigation.

Audience and Impact

The audience for an orchestra is often more formal, more elite, and more willing to pay for a grand performance. Commercial Litigation Financing likewise serves a specialized, high-stakes audience: multinational corporations, hedge funds, and sophisticated investors. The outcomes affect entire industries and markets, not just individual households.

While a rock band might play in bars or stadiums, an orchestra plays in concert halls before an audience expecting refinement. That’s the difference in scale between Consumer Legal Funding and Commercial Litigation Financing.

Attorney Portfolio Financing: The Gospel Choir

Collective Strength and Community

If Consumer Legal Funding is a rock band and Commercial Litigation Financing is a symphony orchestra, then Attorney Portfolio Financing is a gospel choir. It’s powerful, collective, and rooted in the idea of strength in numbers.

Attorney Portfolio Financing provides capital to law firms by pooling together multiple cases—often personal injury or contingency fee cases—into one financing arrangement. Instead of betting on a single case, the funding spreads across a portfolio, much like the voices of a choir blend to create a unified sound.

Stability and Predictability

A gospel choir doesn’t rely on one soloist to carry the performance. If one voice falters, the rest keep singing. Similarly, portfolio financing reduces risk because the outcome of any one case doesn’t determine the success of the financing. The strength lies in the collective performance of many cases.

This allows law firms to take on more clients, expand their practices, and better withstand the financial ups and downs of litigation. For clients, it means their attorneys have the resources to see their cases through rather than being pressured into quick settlements.

Purpose and Spirit

Gospel choirs aren’t just about music—they’re about inspiration, resilience, and community. Attorney Portfolio Financing carries a similar spirit. It’s designed not only to provide financial stability for law firms but also to empower them to serve clients more effectively.

While the audience for a gospel choir is often the community itself, the “audience” for portfolio financing is law firms and, indirectly, the clients who benefit from better-resourced representation.

Comparing the Three Sounds

To appreciate the differences, let’s put the three side by side:

Type of FundingMusical AnalogyAudienceScalePurpose
Consumer Legal FundingRock BandIndividuals waiting for case resolutionSmall-scale, personalHelps consumers cover living expenses while awaiting settlement
Commercial Litigation FinancingSymphony OrchestraCorporations, investors, large law firmsLarge-scale, complexFunds high-stakes commercial disputes over years
Attorney Portfolio FinancingGospel ChoirLaw firms (and indirectly their clients)Medium-to-large scaleProvides stability by funding multiple cases at once

Why These Distinctions Matter

Understanding these distinctions isn’t just an academic exercise—it has real implications for policy, regulation, and public perception. Too often, critics conflate Consumer Legal Funding with Commercial Litigation Financing or assume Attorney Portfolio Financing operates the same way as individual case advances.

But regulating a rock band as if it were an orchestra—or treating a gospel choir as if it were a solo act—would miss the point entirely. Each type of legal funding has its own purpose, structure, and audience.

  • Consumer Legal Funding keeps people afloat in times of crisis.
  • Commercial Litigation Financing enables corporations to fight complex battles on equal footing.
  • Attorney Portfolio Financing stabilizes law firms and expands access to justice.

All three are part of the broader “music” of legal finance, but they are distinct genres with distinct contributions.

Conclusion: Harmony Through Diversity

Music would be dull if every performance sounded the same. The same is true for legal finance. A rock band, a symphony orchestra, and a gospel choir all create music, but their sounds, audiences, and purposes differ dramatically.

Similarly, Consumer Legal Funding, Commercial Litigation Financing, and Attorney Portfolio Financing are all forms of legal finance, but each plays a unique role. Recognizing these differences is crucial for policymakers, industry professionals, and the public.

When we appreciate the rock band, the orchestra, and the choir for what they are, we begin to see the full richness of the legal finance “soundtrack.” Together, they form a diverse ecosystem that, when balanced correctly, ensures both individuals and institutions can pursue justice without being silenced by financial pressure.

Express Legal Funding Re-Ups Ethics Signal With ARC Membership

By John Freund |

Express Legal Funding announced it has reached its fifth year as a member of the Alliance for Responsible Consumer Legal Funding (ARC), underscoring a commitment to best practices in an often-polarized pre-settlement space. For a company that brands itself around transparent pricing and consumer education, the ARC imprimatur doubles as a marketing and compliance asset—especially as statehouses revisit disclosure, APR caps and contract clarity.

An announcement in PR Newswire positions the milestone within a “rapidly growing” lawsuit-cash-advance market. While the release is light on metrics, the message tracks with the broader U.S. consumer-funding narrative: pressure from insurers and tort-reform groups on one side; advocates and funders emphasizing access to liquidity and non-recourse safety on the other.

For plaintiff firms, vendor due diligence remains a reputational imperative; for consumers, independent accreditation—however voluntary—can serve as a quick proxy for baseline standards when shopping funding offers. The strategic subtext is clear: as more states contemplate rules around discoverability, disclosures and rate structures, firms that can point to consistent adherence to codes like ARC’s may enjoy smoother law-firm relationships and fewer regulatory headwinds.

With regulatory skirmishes likely to continue at the state level, recurring membership signals (ARC or otherwise) will matter more.

Editor's Note: An earlier version of this article stated that Express Legal Funding reached its fifth consecutive year as a member of the Alliance for Responsible Consumer Legal Funding. Express Legal Funding reached its fifth year, but not consecutively. We regret the error.

Karyn Cerulli Joins High Rise Financial to Bolster PI Funding

By John Freund |

High Rise Financial has added industry veteran Karyn Cerulli as Regional Vice President of Sales, deepening the Los-Angeles-based funder’s reach into the personal-injury bar. Cerulli spent more than a decade with FindLaw and Thomson Reuters, where she partnered with firms on digital marketing and business-development strategies. In her new role she pivots from lead generation to liquidity, positioning High Rise’s non-recourse advances as a client-care tool for plaintiffs’ firms facing lengthy litigation timelines.

A post on LinkedIn sets out Cerulli’s agenda: hands-on attorney support, a “best rate guarantee,” and white-glove service that places “zero pressure” on case strategy while delivering cash within days. Cerulli frames High Rise as a complement rather than a competitor to existing funders, inviting firms to keep her on standby as a “second option” or safety net when primary partners stall or pricing shifts.

The move comes amid rapid growth for High Rise, which secured a $100 million senior credit facility late last year to expand its pre-settlement portfolio and medical-lien program. The funder touts 24-hour approvals, no credit checks, and repayment only from a successful resolution—features that resonate with Cerulli’s long-time focus on consumer-friendly legal services. With her network of plaintiff-side marketers and case managers, the company hopes to accelerate origination across high-volume auto and premises claims.