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Probate Funding: A Useful Option for So Many (Part 3 of 4)

The following is Part 3 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. You can find Parts 1 & 2 here and here.

Probate Assignments are Adequately Regulated in California

In California, it is the exclusive jurisdiction of the Probate Court to determine entitlement for distribution, Cal. Probate Code §§11700-11705. Probate Courts may also apply equitable principles in fashioning remedies and granting relief in proceedings otherwise within its jurisdiction. Estate of Kraus (2010) 184 Cal. App 4th 103, 114, 108 Cal. Rptr. 3d 760, 768. Thus, even without a specific statute addressing assignments, Probate Courts in California, as well as other jurisdictions, have conducted oversight over the propriety of Assignments in Probate.  See In Re: Michels’s Estate 63 P. 2d 333, 334 (Cal. Dist. Ct. App. 1936).

For decades, the California Legislature has also regulated Assignments or Transfers by a beneficiary of an estate, see Cal. Probate Code §11604 (formerly Cal. Probate Code §1021.1). The validity of those statutes was well established. Estate of Boyd (1979) 98 Cal. App. 3d 125, 159 Cal. Rptr. 298, and the Courts have recognized the Probate Judge is empowered to give much stricter scrutiny to the fairness of consideration than would be the case under ordinary contract principals. Estate of Freeman (1965) 238 Cal. App., 2d 486, 488-89; 48 Cal. Rptr. 1.

The initial purpose of Probate Code Section 1021.1(followed by 11604), was to provide for judicial supervision of proportional assignments given by beneficiaries to so called “heir hunters” (Estate of Wright (2001) 90 Cal. App. 4th 228; Estate of Lund (1944) 65 Cal. App. 2d 151; 110 Cal Rptr. 183.  However, courts have since interpreted that these sections are not limited to that class and can also be applied to Assignees and Transferees generally. Estate of Peterson (1968) 259 Cal. App. 2d. 492, 506; 66 Cal Rptr. 629.

Despite the broad interpretation, California adopted additional legislation specifically directed to Probate Advance Companies. In 2006, the California Legislature enacted Probate Code Section 11604.5,[1] to regulate companies (Probate Advance Companies) who are in the business of making cash advances in consideration of a partial Assignment of the heir’s interest. With the enactment of Section 11605.4, the California Legislature also made it abundantly clear that the transactions under this section are not those made in conformity with the California Finance Lenders Law.

Cal. Probate Code Section 11604.5

(a) This section applies when distribution from a decedent’s estate is made to a transferee for value who acquires any interest of a beneficiary in exchange for cash or other consideration.

(b) For purposes of this section, a transferee for value is a person who satisfies both of the following criteria:

(1) He or she purchases the interest from a beneficiary for consideration pursuant to a written agreement.

(2) He or she, directly or indirectly, regularly engages in the purchase of beneficial interests in estates for consideration.

(c) This section does not apply to any of the following:

(1) A transferee who is a beneficiary of the estate or a person who has a claim to distribution from the estate under another instrument or by intestate succession.

(2) A transferee who is either the registered domestic partner of the beneficiary, or is related by blood, marriage, or adoption to the beneficiary or the decedent.

(3) A transaction made in conformity with the California Finance Lenders Law (Division 9 (commencing with Section 22000) of the Financial Code) and subject to regulation by the Department of Business Oversight.

(4) A transferee who is engaged in the business of locating missing or unknown heirs and who acquires an interest from a beneficiary solely in exchange for providing information or services associated with locating the heir or beneficiary(emphasis added).

Although it is not specifically required under Probate Code Section 11604, the Legislature also imposed an affirmative obligation on Probate Assignees to promptly file and serve their Assignments, to ensure full disclosure to the representatives, the Courts and/or other interested parties.[2] Also, the legislature made it clear that unlike loans, Probate Assignments are non-recourse, meaning that the beneficiary faces no further obligation to the Assignee, absent fraud. As stated in 11604.5:

(f)“…(4) A provision permitting the transferee for value to have recourse against the beneficiary if the distribution from the estate in satisfaction of the beneficial interest is less than the beneficial interest assigned to the transferee for value, other than recourse for any expense or damage arising out of the material breach of the agreement or fraud by the beneficiary…” …(*emphasis added).

Moreover, in enacting PC 11604.5, the legislature specifically gave the Probate Court wide latitude in fashioning relief, when reviewing probate Assignments.

“… (g) The court on its own motion, or on the motion of the personal representative or other interested person, may inquire into the circumstances surrounding the execution of, and the consideration for, the written agreement to determine that the requirements of this section have been satisfied.

(h) The court may refuse to order distribution under the written agreement, or may order distribution on any terms that the court considers equitable, if the court finds that the transferee for value did not substantially comply with the requirements of this section, or if the court finds that any of the following conditions existed at the time of transfer:

(1) The fees, charges, or consideration paid or agreed to be paid by the beneficiary were grossly unreasonable.

(2) The transfer of the beneficial interest was obtained by duress, fraud, or undue influence.

(i) In addition to any remedy specified in this section, for any willful violation of the requirements of this section found to be committed in bad faith, the court may require the transferee for value to pay to the beneficiary up to twice the value paid for the assignment.

An Assignment under 11604.5 is Best Reviewed by the Local Probate Court

At present, it does not appear that there has been a reported case interpreting an Assignment under Probate Section 11604.5, including whether the consideration paid was grossly unreasonable. However, there have been a long list of cases interpreting precisely that under Probate Code Section 11604 and Probate Code Section 1021.1) See Estate of Boyd, supra, 159 Cal. Rptr. 301-302; Molino v. Boldt (2008) 165 Cal. App. 4th 913, 81 Cal Rptr 3d. 512.

At the same time, it should be noted that there are distinct differences between Assignments given to Heir-Finders and those to Probate Advance Companies. One critical distinction is Probate Advance Companies, such as IFC, provide the Assignor with cash in consideration of a partial Assignment. On the other hand, Heir-Finders, take back a percentage of the Heir’s interest (typically 15% to 40%). Thus, the amount of fees incurred by the Assignee could vary widely depending on the amount the heir recovers. In most instances, the Assignment far exceeds the consideration given to a Probate Advance Company. Moreover, Heir-Finders often receive assignments from multiple heirs in one estate administration even though much of the work would be duplicated. On the other hand, Probate Funding Companies outlay cash consideration for every Assignment they receive. Thus, Probate Funding Companies take on an increased financial risk with every transaction.

Also, as in any industry, there are also significant distinctions among the practices of individual Probate Funding Companies including the disclosures they make to the Assignor/Heir. For example, IFC’s contracts, are limited to less than three (3) pages with no hidden fees or other costs tacked on the Assignment post-funding.[3]  The Assignee simply agrees to assign a fixed portion of his/her inheritance for a fixed sum of money.  In other words, a simple $X for $Y purchase.  Thus, it would be a fatal mistake to make a broad-based analysis based on the assumption that one size fits all when it comes to Probate Funding Companies. [4]

Moreover, under Probate Code Section 11604.5, the Legislature has placed an affirmative burden on the Transferee (Probate Funding Companies) to file and serve their Assignments shortly after their execution. Hence, the terms are open reviewable by the Courts, Personal Representatives, Attorneys, other interested parties and/or to the public in general. Therefore, there is more than adequate opportunity for objections to be filed or for the Court to question the consideration given for an Assignment, sua sponte.

In short, the Legislature left the determination of what amount of fees, charges and other consideration would be deemed “grossly unreasonable” up to the particular Court where administration is ongoing, and to do so on a case by case basis if deemed necessary.   In fact, it is in the best interest for all concerned for the local Court to conduct inquiry if legitimate objections are raised, or on the Court’s own motion. In fact, on many occasions, IFC has responded to questions raised by various courts with regard to the Assignments it has filed and served.[5]

Stay tuned for Part 4 of our 4-Part series, where we discuss the risks inherent in Probate Funding, and how those risks should inform the court’s assessment on the validation of an Assignment. 

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. 

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[1] IFC provided substantial input, counsel and proposed legislative language in response to California Senate Bill 390 which was enacted into law as Probate Code Section 11604.5 on January 1, 2006 regulating the Probate Funding industry in California. SB 390.Section 1 2015, Ch. 190 (AB 1517) Section 71

[2] Probate Code 11604 does not have a time limitation filing period reflected.

[3] Some Probate Advance Companies have charged interest or other fees post-funding.

[4] See Probate Lending, supra, page 130, in which the author makes questionable statistical findings from one county during a limited period of time, with the assumption that each Probate Advance Company has the same terms and business practices.

[5] IFC has responded to multiple orders to show cause in California.

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Legal Bay Presettlement Funding Offers Comprehensive Guideline for Funding Contracts to Avoid

By Harry Moran |

As the lawsuit funding industry continues to grow, Legal-Bay Lawsuit Settlement Funding is issuing a public advisory to plaintiffs navigating the complex and often underregulated pre-settlement loan landscape. The company urges consumers to remain vigilant against deceptive contract practices and highlights its own commitment to transparency, fairness, and ethical funding solutions.

While pre-settlement funding can offer critical financial relief during lengthy legal battles, Legal-Bay warns that not all funding companies operate ethically. In particular, the firm is cautioning plaintiffs to avoid contracts that include compounding pricing models, hidden fees, and vague language, common tactics used by unscrupulous funders.  Legal-Bay also offers refinancing's in event you have a large legal funding lien with a bad compounding rate and want cheaper pricing.

Chris Janish, CEO of Legal Bay, says, "Too often we see plaintiffs fall victim to exploitative funding agreements that leave them owing far more than they borrowed, especially after years of compounding costs buried in the fine print. Many of these contracts are intentionally confusing, designed to mislead consumers. At Legal-Bay, we offer refinancing options on large funding buyouts, by converting your existing compounding lien into a flat pricing lien – no different than a home mortgage refi."

If you are involved in any active litigation and would like to discuss how to get a cash advance from your anticipated lawsuit settlement, please visit the company's website HERE or call 877.571.0405 where agents are standing by to hear about your specific case.  

Legal-Bay outlines several red flags that plaintiffs should watch out for when considering a pre-settlement advance:

  • Compounding interest without clear repayment terms: Some funders fail to disclose how much a plaintiff will owe over time, resulting in balances that balloon dramatically after two or three years.
  • Vague or misleading contract language: Important terms are often hidden in fine print or presented in confusing legal jargon.
  • Discouraging attorney involvement: Ethical funders will encourage plaintiffs to review all funding agreements with their attorneys instead of trying to edge them out of the discussion.
  • Lack of disclosure about maximum repayment: Some contracts leave plaintiffs uncertain about how much will ultimately be deducted from their settlement.

In contrast, Legal-Bay's approach is rooted in transparency, fairness, and full attorney cooperation. All of their contracts are structured to include straightforward terms, capped repayment amounts, and no compounding interest. Plaintiffs and their attorneys are given full access to review and understand the terms before any funding is finalized.

Legal-Bay's dedication to ethical funding has made it a trusted name in loan on lawsuit funding for plaintiffs in personal injury, sexual abuse, motor vehicle accidents, medical malpractice, dog bite, commercial litigation, and many more.

Legal-Bay's lawsuit funding programs are designed to provide immediate cash in advance of a plaintiff's anticipated monetary award. While it's common to refer to these legal funding requests as loans on lawsuit or settlement loans, legal funding isn't like a loan at all. Because the funds are non-recourse, there's no risk since there is no obligation to repay the money if the recipient loses their case.

To apply right now for a loan settlement program, please visit the company's website HERE or call toll-free at: 877.571.0405 where agents are standing by to answer any questions.

Legal-Bay Launches Innovative Attorney Case Cost Funding

By Harry Moran |

Legal-Bay Pre-settlement Lawsuit Funding, a longtime leader in presettlement and legal funding, has unveiled a new financing program designed to help attorneys cover the high costs of building and preparing cases for trial without relying on bank loans or credit lines.

Case costs can include everything from medical records to expert witnesses to life care plans to court fees. Legal-Bay's funding lessens the upfront financial strain by providing capital that's only repaid if the lawsuit is successful, and gives legal professionals fast, flexible access to extra money when they need it most. The program allows attorneys to secure resources for experts, depositions, court filings, and other necessary expenses without tying up firm assets or tapping into their own expense accounts.

Chris Janish, CEO of Legal Bay, says, "Legal-Bay's attorney or law firm case cost funding program is tailored to help small and medium firms get the ball across the goal line to win big cases. We are a resource for lawyers nationwide to utilize case cost funding when cash flow is tight, without long underwriting processes, credit checks or monthly payments.  Best of all, our non-recourse funding means you only pay if you win the case."

If you're a lawyer or law firm in need of extra case cost funding in advance of your case's anticipated settlement award, you can apply HERE or call: 877.571.0405

With nearly 20 years of experience in legal finance, Legal-Bay has earned the trust of thousands of attorneys and law firms across the country. The company's commitment to fast approvals, transparent terms, and case-first evaluations has made it a go-to resource for professionals seeking a smarter way to manage litigation costs.

Legal-Bay is one of the best legal funding companies in the industry, known for their helpful staff and quick turnaround. They fund almost every type of lawsuit including personal injury, slips and falls, sexual discrimination, assault, or abuse, motor vehicle accidents, wrongful incarceration, and more. While sometimes legal funding is referred to as loans on lawsuit or lawsuit loans, there are no credit checks or collateral required. The money is an immediate cash advance against a plaintiff's anticipated settlement award, not a conventional loan. The non-recourse lawsuit funding is risk-free, as the money doesn't need to be repaid should the recipient lose their case.

To apply right now, please visit the company's website HERE or call toll-free at: 877.571.0405 where agents are standing by to answer your questions.

Legal-Bay Launches INSTALL Funding: Monthly Financial Relief for Plaintiffs Awaiting Settlement

By Harry Moran |

Legal-Bay, a leading pre-settlement funding company, has introduced a game-changing financial solution for plaintiffs embroiled in active litigation. Their newly launched INSTALL funding contract offers clients the ability to receive structured monthly payments instead of a traditional one-time advance, easing the burden of everyday living expenses during the often lengthy legal process.

This innovative funding option addresses a growing need among plaintiffs who face significant financial strain while their cases are pending. With INSTALL funding, individuals can rely on predictable monthly disbursements designed to cover essential costs such as legal fees, medical bills, and everyday housing expenses, allowing them to focus on their case without the added pressure of missed bills or mounting debt.

Chris Janish, CEO of Legal-Bay, says, "Legal battles can be incredibly stressful, especially when they drag on for months or even years. We created INSTALL funding to provide ongoing financial stability for our customers when they need it the most, when they are stuck at home and can't work, but still need to have their bills paid on the first of the month."

INSTALL funding is one of Legal-Bay's most popular products, because lawyers know their clients cannot fight a case without cash flow coming in each month.

So, if you are a lawyer and have a client—or If you're a plaintiff yourself—in an existing lawsuit who needs an immediate INSTALL funding contract against an anticipated cash settlement award, you can apply HERE or call: 877.571.0405

Unlike standard bank loans which often involve large lump sums and steep repayment terms, INSTALL funding is tailored to meet real-life needs. Clients only draw what they require each month, which can significantly lower the total repayment after a case is settled. This targeted approach helps prevent excessive borrowing and encourages responsible financial planning throughout the litigation process.

By providing installation-based funding with client-friendly terms, Legal-Bay offers clear, flexible solutions to their customers' financial needs. The program is ideal for individuals involved in personal injury, slip and fall, medical malpractice, motor vehicle accident, Workers Comp. or 3rd party workers comp. claims or work injury claims, and many other types of cases.

Legal-Bay is one of the best legal funding companies in the industry, known for their helpful staff and quick turnaround. While sometimes pre-settlement funds are referred to as loans on lawsuit or lawsuit loans, there are no credit checks or collateral required for legal funding. The money is an immediate cash advance against a plaintiff's anticipated settlement award, not a conventional loan. The non-recourse lawsuit funding is risk-free, as the money doesn't need to be repaid should the recipient lose their case.

To apply right now, please visit the company's website HERE or call toll-free at: 877.571.0405 where agents are standing by to answer your questions.