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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. 

—-

[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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Golden Pear Upsizes Corporate Note to $78.7M Amid Growth Plans

By John Freund |

Golden Pear Funding has extended and upsized its investment-grade corporate note to $78.7 million, further bolstering the firm's capacity to serve the expanding litigation finance sector. The New York-based funder, a national leader in both pre-settlement and medical receivables financing, said the proceeds will support working capital and fuel strategic growth initiatives.

A press release from Golden Pear outlines how the capital raise reflects continued investor confidence in the firm’s business model. CEO Gary Amos noted that the infusion is critical as Golden Pear seeks to scale alongside the “rapidly expanding litigation finance market.” CFO Daniel Amsellem added that the new funding aligns with the company’s capital allocation strategy, aimed at optimizing operational efficiency and executing strategic projects.

Brean Capital, LLC acted as the exclusive financial advisor and sole placement agent on the transaction.

Founded in 2008, Golden Pear has funded more than $1.1 billion to over 87,000 clients and remains one of the largest specialty finance companies in the U.S. Its business model spans legal case funding and medical receivables purchasing, with backing from a network of private equity partners that provide institutional support for continued expansion.

Mayfair Legal Launches Wildfire Support Program for Plaintiffs

By John Freund |

Mayfair Legal Funding has unveiled a new initiative aimed at aiding wildfire victims in Los Angeles and Maui by providing pre-settlement advances tailored to individuals pursuing legal claims related to recent wildfire disasters. The program seeks to ease the financial burden on plaintiffs during the lengthy litigation process, allowing them to cover essential living expenses and medical costs without being forced into early or inadequate settlements.

An article in OpenPR reports that Mayfair’s program will provide wildfire-impacted claimants with cash advances while their cases proceed through court or settlement negotiations. The funding is non-recourse, meaning recipients are only obligated to repay the advance if their case is successful. This offering is particularly timely in light of the mounting legal battles related to utility-sparked wildfires in California and the catastrophic 2023 fires in Maui, both of which have left thousands seeking legal recourse and financial recovery.

Mayfair emphasized that this initiative aligns with its mission to ensure access to justice regardless of a claimant’s financial status. “We believe that no one should have to choose between basic survival and pursuing a rightful claim,” said a spokesperson for the funder, noting that the company’s underwriting process is designed for speed and minimal paperwork.

With natural disasters on the rise and litigation timelines stretching longer than ever, targeted pre-settlement funding like this may become an increasingly vital tool for plaintiffs. The wildfire-specific program from Mayfair underscores a growing trend of funders developing specialized products for mass torts and disaster-related litigation—an area likely to see heightened investor and regulatory attention in the years ahead.

New Express Legal Funding Portal and App Give Injury Plaintiffs Faster Access to Lawsuit Cash Advances

By Harry Moran |

The below is a sponsored post from Express Legal Funding.

Express Legal Funding, a leader in the pre-settlement funding industry, has officially launched the Express Legal Funding Portal and mobile app suite—now available on iOS, Android, and web. The innovative platform gives plaintiffs real-time access to their funding application status, document uploads, and direct case communication—all from a secure, user-friendly interface.

Since launch, the platform has already seen over 200 app installs across iOS and Android, reflecting strong early adoption and client demand for greater transparency, speed, and convenience in the legal funding process.

"This is the kind of digital leap our industry needed," said Aaron Winston, Phd, Strategy Director at Express Legal Funding. "With the Express Legal Funding Portal, clients no longer have to wait days for updates or navigate confusing paperwork. Now they can check their status, send documents, and message us—all in one place, and on their own time, anytime 24,7. Ray Bivona, our Operations Manager, did a great job building out the platform."

Meeting the Demand for Speed, Simplicity, and Security

The Express Legal Funding Portal and apps are designed to meet the evolving expectations of legal consumers, as reports indicate the industry has surpassed $1 billion in annual advances nationwide. Key features include:

  • Live Case Status Tracking: Monitor the full legal funding timeline in real time
  • Secure Document Uploads: Send attorney correspondence and case files instantly
  • In-App Messaging: Communicate directly with case managers—no long hold times or email delays
  • Push Notifications: Get instant alerts for updates, requests, and approvals
  • Funding Calculator: Estimate pre-settlement cash eligibility based on case type
  • Bank-Level Encryption: Ensures client privacy and legal compliance at every step

"Clients tell us this is the best communication experience they've had with a legal funding company," said Shawn Hashmi, Chief Executive Officer at Express Legal Funding. "The high number of downloads in such a short time proves there's a real demand for this kind of tool."

Transforming the Legal Funding Experience for Plaintiffs and Attorneys

The Express Legal Funding Portal improves operational efficiency and transparency on both sides of the process:

  • For Plaintiffs: Offers peace of mind and greater control during a financially vulnerable time
  • For Attorneys: Reduces administrative back-and-forth, freeing up time to focus on litigation

About Express Legal Funding

Express Legal Funding is a trusted national provider of non-recourse pre-settlement funding, helping plaintiffs access fast, risk-free financial relief while their lawsuits move through the legal system. Repayment is only required if the client wins or settles their case.

The company has served thousands of injured plaintiffs in cases involving car accidents, slip and falls, product liability, and more.

What's Coming Next

In addition to the current features, the platform aims to expand in the coming months with:

  • Attorney Dashboard: Real-time access for law firms to manage client funding
  • In-App Renewals: Easy follow-up funding requests for returning clients
  • Case Management Integrations: Compatibility with popular personal injury law firm software platforms like Clio, Filevine, and SmartAdvocate