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Probate Funding: A Useful Option for So Many (Part 2 of 4)

June 4, 2018

Probate Funding: A Useful Option for So Many (Part 2 of 4)

The following is Part 2 of our 4-Part series on Probate Funding by Steven D. Schroeder, Esq., General Counsel/Sr. Vice President at Inheritance Funding Company, Inc. since 2004. Part 1 can be found here. Comparing Assignments with Loans: Apples Are Not Oranges As previously stated, there has been some recent criticism of the companies engaged in Probate funding.[1] An Article entitled: “Probate Lending” started and ended with the premise that Probate Assignments are in fact disguised loans and should be regulated as such. Despite the predetermined conclusion by one author, in fact, the law treats Assignments and Loans quite differently and those distinctions are significant.[2]
  1. What is an Assignment?
An Assignment is a term that may comprehensively cover the transfer of legal title to any kind of property. Commercial Discount Co. v. Cowen (1941) 18 Cal. 2d 601, 614; see also In re: Kling (1919) 44 Cal. App. 267, 270, 186 P. 152. When valid consideration is given, the Assignee acquires no greater rights or title than what is assigned. In other words, the Assignee steps in the shoes of the Assignor’s rights, subject to any defenses that an obligor may have against Assignor, prior to Notice of Assignment. See Parker v. Funk (1921) 185 Cal. 347, 352, 197 P. 83.  See also Cal. Civil Code §1459; Cal. Code of Civil Procedure §369. An Assignment may be oral or written and no special form is necessary provided that the transfer is clearly intended as a present assignment of interest by the Assignor. If only a part of the Assignor’s interest is transferred, it may nevertheless be enforced as an equitable Assignment. See McDaniel v. Maxwell, (1891) 21 Or. 202, 205, 27 P. 952. It has been held that any expectancy may be assigned or renounced. See Prudential Ins. Co. of America v. Broadhurst 157 Cal. App. 2d 375, 321 P. 2d 75. Similarly, a beneficiary may assign or otherwise transfer his or her interest in an Estate prior to distribution. See Gold et. al., Cal Civil Practice: Probate and Trust Proceedings (2005) §3:86, p. 3-78. Probate Assignments are those taken prior to the completion of probate administration for which an heir/beneficiary transfers a portion of his/her expected inheritance in the estate in consideration of a cash advance (i.e. the purchase price).
  1. What is a loan?
A loan agreement is a contract between a borrower and a lender which governs the mutual promises made by each party. There are many types of loan agreements, including but not limited to: “home loans”, “equity loans”, “car loans”, “mortgage loan facilities agreements”, “revolvers”, “term loans” and “working capital loans” just to name a few. In contrast to Assignments, loans do not transfer legal title and instead are contracts in which the borrower pays back money at a later date, together with accrued interest to the lender. A loan creates a debtor and creditor relationship that is not terminated until the sum borrowed plus the agreed upon interest is paid in full. Milana v. Credit Discount Co. (1945) 27 Cal. 2d 335, 163 P.2d.869. In order to constitute a loan, there must be a contract whereby the lender transfers a sum of money which the borrower agrees to repay absolutely; together with such additional sums as may be agreed upon for its use.[3] The nature of a loan transaction, can be inferred from its objective characteristics. Such indicia include: presence or absence of debt instruments, collateral, interest provisions, repayment schedules or deadlines, book entries recording loan balances or interest, payments and any other attributes indicative of an enforceable obligation to repay the sums advance. Id, citing Fin Hay Realty Co. v. United States 398, F.2d 694, 696 (3d Circ. 1968). Also, unlike Assignments, lenders typically insist upon several credit worthy factors prior to funding. For example, the “borrower” makes representations about his/her character including creditworthiness, cash flow and any collateral that he/she may pledge as security for a loan. These creditworthy representations are taken into consideration because the lender needs to determine under what terms, if any, they are prepared to loan money and whether the borrower has the wherewithal to pay it back, generally within a certain time frame. In cases of Probate Assignments, an Advance Company rarely considers creditworthiness of the Assignee, because it is not he/she who is responsible to satisfy the obligation. That obligation falls upon the Estate or Trust fiduciary. In addition, Probate Assignments cannot be deemed to be a loan if the return is contingent on the happening of some future event, (i.e. Final Distribution). Altman v. Altman (Ch. 1950) 8 N.J. Super.301, 72 A.2d 536., Arneill Ranch v. Petit 64 Cal. App. 3d, 277, 134 Cal. Rptr. 456, 461-463 (Cal. Ct. App. 1976).  True Probate Assignments, executed in consideration of an advance, have no time limit for payment, nor do they accrue interest post-funding. Furthermore, an assignee is not required to make periodic interest payments and in the vast majority of cases no payment at all. Moreover, although loans are often secured against real property, Assignments in Probate should not be secured. Estate Property is generally not owned or distributed to the heir at the time the Assignment is executed. A critical distinction between Probate Assignments and loans, is that when an Assignment is executed, there is no unconditional obligation that the Assigned amount be paid and/or when it might be paid. Once assigned, the Assignor owes no further obligation to the Assignee over those rights sold/assigned. And, the Assignee has no recourse against the Assignee/Heir should the heir’s distributive share be less that what he/she assigns. In other words, to “constitute [a] true loan [] there must have been, at the time the funds were transferred, an unconditional obligation on the part of the transferee to repay the money, and an unconditional intention on the part of the transferor to secure repayment.”  Geftman v. Comm’r 154 F3rd 61, 68 (3d Cir. 1998) quoting Haag v. Comm’r 88.T.C. 604, 615-16, 1987 WL 49288 aff’d 855 F. 2d 855 (8th Cir. 1987). Many jurisdictions in addition to California, recognize that the absolute right to repayment or some form of security for the debt as the defining characteristics of loan.[4] While the structure and elements slightly vary, the following is a side by side comparison of some of the basic distinctions of loans and Assignments in Probate Funding:
LoansAssignments
Tenor: This is the time limit for repaying the loan as well as the interest rate charge.Tenor: No time limit for payment. No interest accrues.
Obligor on the Assignment: The Borrower is contractually obligated to repay.Assignee on the Assignment: Assignee/Heir does not pay anything.  A third party (i.e. administrator pays the Assignment.
Recourse: The Borrower is unconditionally obligated.Recourse: In absence of fraud, the Assignee has no recourse should his interest be less than what is assigned or even $0.00.
Interest Payment and Capitalization: The interest rate charge for the loan and time limit for interest payment. It also stipulates conditions under which unpaid Interest will be added to the outstanding loans.Interest Payment and Capitalization: Interest does not accrue post funding and the Assignment is fixed.
Penalties: Late payments are typically subject to penalties and/or trigger default.Penalties: No payments are due.  No Default deadlines for payment imposed on Assignee/Heir.
Creditworthiness: Essential for approvalCreditworthiness: Not essential
Default: Foreclosure is an option; a borrower could bear default.Default: No penalty no matter when Assignment is paid. Assignments are not secured. Foreclosure is not an option.
Moreover, given the uncertain time frame for recovery and absence of recourse against the Assignee/Heir, it would be impossible to assign an interest rate or make a Truth in Lending (“TILA”) disclosure, 15 U.S.C. §1601 (2012). Since the purpose of the TILA is to assure meaningful disclosure, the simplicity of an Assignment eliminates any necessity of making interest rate disclosures as required by interest bearing loans. When the Assignor sells a portion of his/her interest for a fixed sum Assignment, what additional disclosures are necessary? In short, there are many significant differences between Probate Assignments and Loans. Courts and Legislatures throughout the country have recognized these distinctions and have considered them when regulating or providing necessary review over either product. Stay tuned for Part 3 of our 4-Part series, where we discuss California’s regulation of Probate Funding, and how such regulation can serve as a model for other jurisdictions. 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.  —- [1]  David Horton and Andrea Chandrasenkher, supra (2016) 126 Yale 105-107.  Professors Horton and Chandrasekher analogized Litigation Funding to the ancient doctrine of champerty even though acknowledging California has never recognized the doctrine, See e.g. Mathewson v. Fitch, 22 Cal. 86, 95 (1863). [2] The conclusions in Probate Lending were debunked, by Jeremy Kidd, Ph.D. Associate Professor of Law, Mercer, Probate Funding and the Litigation Funding Debate, See Wealth Strategies Journal, August 14, 2017. [3] 47 C.J.S. Interest and Usury; Consumer Credit Section 123 (1982). [4] See In re Nelson’s Estate (1930) 211, Iowa 168; Dobb v. Yari, (NJ 1996), 927 F. Supp 814; Turcotte v. Trevino (1976) 544, S.W. 2d 463; quoting.47 C.J,S. Interest and Usury; Consumer Credit Section 123 (1982); Turcotte v. Trevino 544 S.W.2d 463 (1976), Cherokee Funding, LLC v. Ruth (2017) A17A0132; “…New York recognizes the absolute right of repayment or some form of security for the debt as the defining characteristic of a loan.   Its courts have explicitly stated that ‘[f]or a true loan it is essential to provide for repayment absolutely and all events or principal in some way to be secured…’ MoneyForLawsuits VLP v. Row No. 4:10-CV-11537]. Thus, a transaction that neither guarantees the lender an absolute right to repayment nor provides it with security for the debt is not a loan, and as a result, cannot be subject to New York’s usury laws…”   (emphasis added). “…In Brewer v. Brewer, 386 Md. 183, 196-197 (2005), the Court of Appeals held that “redistribution agreements are permissible and, so long as they comply with the requirements of basis contract law, neither the personal representative nor the court has any authority to disapprove or veto them.  See also In re: Garcelon’s Estate 38 P. 414, 415 (Cal. 1894), Haydon v. Eldred, 21 S. W.457, 458 (Ky 1929). See Massey vs. Inheritance Funding Company, Inc. Court of Appeals, 7th Dist (TX), 07-16-00148-CV.
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Let’s Get the Definition Right: Litigation Financing is Not Consumer Legal Funding

By Eric Schuller |

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

Across the country, in both state capitols and Washington, D.C., policymakers and courts are giving increasing attention to the question of “litigation financing” and whether disclosure requirements should apply. At the heart of this debate is a push for transparency, who is funding lawsuits, what contracts exist, and what parties are behind those agreements.

While the intent is understandable, the challenge lies in the lack of a consistent and precise definition of what “litigation financing” actually is. Too often, broad definitions sweep in products and services that were never intended to fall under that category, most notably Consumer Legal Funding. This misclassification has the potential to cause confusion in the law and, more importantly, harm consumers who rely on these funds to stay afloat financially while pursuing justice through the legal system.

As Aristotle observed, “The beginning of wisdom is the definition of terms.” Without careful definitions, good policy becomes impossible.

The Distinction Between Litigation Financing and Consumer Legal Funding

The difference between litigation financing and Consumer Legal Funding is both simple and significant.

Litigation financing, sometimes referred to as third-party litigation funding (TPLF), typically involves an outside party providing monies to attorneys or to plaintiffs’ firms to pay for the costs of bringing or defending lawsuits. These funds are used to pay legal fees, expert witnesses, discovery expenses, and other litigation-related costs. The funders, in turn, often seek a portion of the litigation’s proceeds if the case is successful. In short, this type of financing directly supports the litigation itself.

Consumer Legal Funding, on the other hand, serves an entirely different purpose. In these transactions, monies are provided directly to consumers, not attorneys, for personal use while their legal claim is pending. These funds are not used to pay legal fees or case expenses. Instead, consumers typically use them for necessities such as rent, mortgage payments, groceries, utilities, childcare, or car payments. Funding companies are not influencing the litigation but rather ensuring that individuals have the financial stability to see their case through to its conclusion without being forced into a premature settlement simply because they cannot afford to wait.

This is why treating Consumer Legal Funding as though it were litigation financing is both inaccurate and potentially harmful.

Legislative and Judicial Recognition of the Difference

Several states have already recognized and codified this critical distinction. States including Arizona, Colorado, Louisiana, and Kansas have examined disclosure requirements for litigation financing and have made it clear that Consumer Legal Funding is not subject to those laws. Their statutes expressly define litigation financing in a way that excludes consumer-focused products.

Courts have also weighed in. In Arizona, for example, the state’s rules of civil procedure expressly carve out Consumer Legal Funding, recognizing that these transactions are unrelated to litigation financing and should not be treated as such. Likewise, when the Texas Supreme Court considered proposed rules surrounding litigation financing, the Court ultimately declined to proceed. While no new rule was adopted, the process made clear that Consumer Legal Funding was not intended to be part of the conversation.

These examples demonstrate that policymakers and jurists, when carefully considering the issue, have consistently drawn a line between products that finance lawsuits and those that help consumers meet basic living expenses.

Why the Distinction Matters

The consequences of failing to make this distinction are not abstract, they are very real for consumers. If disclosure statutes or procedural rules are written too broadly, they risk sweeping in Consumer Legal Funding.

Disclosure requirements are aimed at uncovering potential conflicts of interest, undue influence over litigation strategy, or foreign investment in lawsuits. None of these concerns are relevant to Consumer Legal Funding, which provides personal financial support and, by statute in many states, explicitly forbids funders from controlling litigation decisions.

As Albert Einstein noted, “If you can’t explain it simply, you don’t understand it well enough.” When the difference between litigation financing and Consumer Legal Funding is explained simply, the distinction becomes obvious. One finances lawsuits, the other helps consumers survive.

A Clear Request to Policymakers

For these reasons, we respectfully urge legislators and courts, when drafting legislation or procedural rules regarding “litigation financing,” to clearly define the scope of what is being regulated. If the issue is the funding of litigation, then the measures should address the financing of litigation itself, not the consumer who is simply trying to pay everyday bills and keep a roof over their head while awaiting the resolution of a legal claim.

Clarity in definitions is not a minor issue; it is essential to ensure that the right problems are addressed with the right solutions. Broad, vague definitions risk collateral damage, undermining access to justice and harming the very individuals the legal system is meant to protect. By contrast, carefully tailored definitions ensure transparency in litigation financing while preserving critical financial tools for consumers.

Finally

The debate around litigation financing disclosure is an important one, but it must be approached with precision. Litigation financing and Consumer Legal Funding are two fundamentally different products that serve very different purposes. One finances lawsuits, the other helps individuals survive while waiting for justice.

It is important to begin with a clear definition. As Mark Twain wisely noted, “The difference between the almost right word and the right word is really a large matter, ’tis the difference between the lightning bug and the lightning.” If legislators and courts wish to regulate litigation financing, they must do so with precision, ensuring clarity in the law while also preserving the essential role that Consumer Legal Funding plays in supporting individuals and families during some of the most difficult periods of their lives.

Consumer

Critics Argue Litigation Funding May Lift Malpractice Insurance Premiums

By John Freund |
Healthcare malpractice insurers are re-evaluating how third-party litigation funding could alter claim dynamics, with potential knock‑on effects for premiums paid by physicians, hospitals, and allied providers. An article in South Florida Hospital News and Healthcare Report points out that for providers already facing staffing pressures and inflation in medical costs, even modest premium shifts can ripple through budgets. Patients may also feel indirect effects if coverage affordability influences provider supply, practice patterns, or defensive medicine. While clearly antagonistic towards the industry, the piece outlines how prolonged discovery, additional expert testimony, and higher damages demands can flow through to insurers’ loss ratios and reserving assumptions, which ultimately inform premium filings. It also notes that providers could see higher deductibles or retentions as carriers adjust terms, while some plaintiffs may gain greater access to counsel and case development resources. For litigation funders, med-mal remains a critical niche. Watch for state-level disclosure rules, court practices around admissibility of funding, and evolving ethical guidance—factors that will shape capital flows into healthcare disputes and the trajectory of malpractice premiums over the next few renewal cycles.
Consumer

Consumer Legal Funding: Support for People, Not Control Over Litigation

By Eric Schuller |

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

Summary: Consumer legal funding (CLF) is a non-recourse financial product that helps people meet essential living expenses while their legal claims are pending. It does not finance lawsuits, dictate strategy, or control settlements. In fact, every state that has enacted CLF statutes has explicitly banned providers from influencing the litigation process.

1) What Consumer Legal Funding Is

CLF provides modest, non-recourse financial assistance, typically a few thousand dollars to individuals awaiting resolution of a claim. These funds are used for rent, food, childcare, or car payments, not for legal fees or trial costs. If the case is lost, the consumer owes nothing.

CLF is not an investment in lawsuits or law firms, it is an investment in the consumer. 

2) Why Control Is Banned

The attorney–client relationship is central to the justice system. CLF statutes protect it by prohibiting funders from interfering. Common provisions include:
- No control over litigation strategy or settlement.
- No right to select attorneys or direct discovery.
- No settlement vetoes. Only the client, guided by counsel, makes those decisions.
- No fee-sharing or referral payments.
- No practice of law. Funders cannot provide legal advice.

These bans are spelled out in statutes across the country. Violating them exposes providers to penalties, voided contracts, and regulatory action.

3) Non-Recourse Structure Removes Leverage

Control requires leverage, but CLF offers none. Because repayment is only due if the consumer recovers, providers cannot demand monthly payments or seize assets. They do not fund litigation costs, so they cannot threaten to cut off discovery or expert testimony. The consumer retains ownership of the claim and full authority over all decisions.

4) Ethical Safeguards Reinforce Statutes

Even without statutory language, attorney ethics rules bar outside influence:
- Lawyers must exercise independent judgment and loyalty to clients.
- Confidentiality rules prevent improper information-sharing.
- No fee-sharing with non-lawyers ensures funders cannot 'buy' influence.
- The decision to settle rests solely with the client, not third parties.

Together, these rules and statutes guarantee that litigation decisions remain with client and counsel.

5) Market Realities: Why Control Makes No Sense

CLF contracts are relatively small, especially compared to the cost of litigation. They are designed to cover groceries and rent, not discovery budgets or jury consultants. Trying to control a case would be both unlawful and economically irrational.

Because repayment is contingent, funders want efficient and fair resolutions, not drawn-out litigation. Their interests align with consumers and counsel: achieving just outcomes at reasonable speed.

6) Addressing Misconceptions

- Myth: Funders push for bigger settlements.
  Fact: They cannot veto settlements. Dragging out cases only increases risk and cost.

- Myth: Funders get privileged information.
  Fact: Attorneys control disclosures; privilege remains intact. Access to limited case status updates does not confer control.

- Myth: CLF pressure consumers to reject fair settlements.
  Fact: Statutes forbid interference. And because advances are non-recourse, consumers are not personally liable beyond case proceeds.

- Myth: CLF is an assignment of the claim.
  Fact: Consumers remain the sole parties in interest. Providers have only a contingent repayment right.

7) How Statutes Work in Practice

States that regulate CLF typically require:
1. Plain-language contracts advising consumers to consult counsel.
2. Cooling-off periods for rescission.
3. Bright-line bans on control over strategy or settlement.
4. No fee-sharing or referral payments.
5. Regulatory oversight through registration or examination.
6. Civil remedies for violations.

This model balances access to financial stability with ironclad protections for litigation independence.

8) The Consumer’s Perspective

CLF does not alter case strategy; it alters life circumstances. Without it, many injured individuals face eviction, repossession, or the inability to pay basic bills. That pressure can lead to ‘forced settlements.' By covering essentials, CLF allows clients to consider their lawyer’s advice based on legal merits, not immediate financial desperation.

9) Compliance in Contracts

Standard CLF contracts reflect the law:
- Providers have no authority over legal decisions.
- Attorneys owe duties solely to clients.
- Terms granting control are void and unenforceable.

National providers adopt these clauses uniformly, even in states without explicit statutes, creating a strong industry baseline.

10) Enforcement and Oversight

Regulators can discipline providers, void unlawful terms, or impose penalties. Attorneys risk ethics sanctions if they allow third-party interference. Consumers may also have remedies under statute. These enforcement tools make attempted control both illegal and unprofitable.

11) Policy Rationale

Legislatures designed CLF frameworks to achieve two goals:
1. Preserve litigation integrity by keeping decisions between client and counsel.
2. Expand access to justice by giving consumers breathing room while claims proceed.

The explicit statutory bans on control ensure both goals are met.

Conclusion

Consumer legal funding is a support tool for people, not a lever over lawsuits. Statutes across the country make this crystal clear: CLF providers cannot influence litigation strategy, cannot veto settlements, and cannot practice law. The product is non-recourse, small in scale, and tightly regulated.

For consumers, CLF offers stability during difficult times. For the justice system, it preserves the attorney–client relationship and the independence of litigation. The result is access to justice without interference—because control of litigation is not only absent, but also expressly banned by law.