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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 Lawsuit Funder Launches Legal Funding Calculator for Consumers

By Harry Moran and 4 others |

Legal Bay Presettlement Funding announces their new funding calculator for customers to compare pricing models of lawsuit loans between funding firms. It should be noted that Legal Bay doesn't charge compounding interest like many other legal funding companies, keeping payback costs lower right from the start. As one of the best lawsuit loan companies in the industry, Legal Bay ensures flat pricing, transparent contracts, and a helpful, knowledgeable staff to walk you through every step of the lawsuit loan funding process.

  1. Legal Bay is a direct funder—not a legal funding broker—which is the first distinction customers should make when researching legal funding options. Here's why:
  2. Being a direct funder allows Legal Bay to expedite cases faster, normally within 24-48 hours after applying, once all documents have been received.
  3. Being a direct funder allows Legal Bay to provide lawsuit loans with cap out provisions for cases that qualify without additional broker fees.
  4. Compound rates can grow substantially over the course of your case settlement funding, while flat interest stays the same at about 20% percent every 6 months.
  5. Legal Bay's lawsuit settlement programs are non-recourse which means the client will not have to pay back the loan if the case does not settle.

Chris Janish, CEO of Legal-Bay, commented, "Our funding calculator gives consumers an invaluable tool to compare payback costs. Plaintiffs will see that our direct funder platform means you deal directly with our staff and underwriters—not a broker. Our direct funding model allows for the fastest approvals, reduced rates, and no added broker fees, keeping your costs low. Legal-Bay's flat pricing—as opposed to compounding interest—and our best price guarantee ensures the lowest rates in the litigation finance industry. On large funding amounts, consumers should be aware of payback costs. The savings of Legal-Bay's flat-rate pricing versus contracts with compounding interest can be substantial."

Legal-Bay's funding model is designed to put more money back in the plaintiff's pocket at settlement. If you or a loved one need an immediate lawsuit loan in advance of your impending lawsuit settlement, please apply online HERE or call toll free at 877.571.0405 where agents are standing by.

Legal-Bay assists plaintiffs in all types of lawsuits, including commercial and mass tort litigation, personal injury cases, slip and fall accidents, property damage, car accidents, medical malpractice, wildfires, and many more. If you're looking for the lowest rates in legal funding, legal funding companies without broker, flat rate pricing or simple pricing legal funding companies, easy to use funding calculator, calculator for lawsuit loans, then Legal Bay is here to help.

Their loan for settlement 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 settlement loans, loans for settlements, law suit loans, loans for lawsuits, etc., the "lawsuit loan" funds are, in fact, non-recourse. That means there's no risk when it comes to loans in lawsuit settlements because there is no obligation to repay the money if the recipient loses their case. Therefore, terms like settlement loan, loans for lawsuit, loans on settlement, or lawsuit loan funds don't necessarily apply, as the "loan on lawsuit" isn't really a loan at all, but rather a stress-free cash advance.

For more information about lawsuit loans, please visit us HERE or call toll free at 877.571.0405 where a skilled agent can answer any questions you may have.

Legal-Bay Pre-Settlement Funding to Begin Funding Hawaii Wildfire Claims After Major Supreme Court Decision

By Harry Moran and 4 others |

Legal-Bay, the Pre Settlement Funding Company, announces today that they are committed to funding their clients in Hawaii who are dealing with wildfire claims. In light of the Aloha state's Supreme Court ruling last week, a previously stagnant $4 billion settlement has now been allowed to proceed, providing financial assistance to numerous displaced Hawaiians still dealing with the after-effects of the deadly inferno.

The 2023 Lahaina wildfire on the island of Maui was the most devastating United States fire in over a century. It killed over 100 people and turned entire towns into ash. Thousands of lawsuits against those responsible for the blaze--including Hawaiian Electric, Kamehameha Schools, the state of Hawaii, and Maui County—soon followed. While the $4 billion offer doesn't come close to covering the $5 billion in property damage—not to mention the incalculable loss of life—attorneys accepted the offer amidst rumblings that the main defendant, Hawaiian Electric, might declare bankruptcy.

Between homeowners, renters, and businesses, insurance companies have already paid out $1.5 billion to victims and are expected to pay out close to $1 billion more. Monday's ruling is a good way for insurance companies to receive reimbursement as well as victims to receive future payouts, paving the way for all parties to move forward with their claims. The case is scheduled to be sent back to a Maui judge to determine what comes next.

Chris Janish, CEO of Legal-Bay, commented, "My personal connection to Lahaina and its residents makes seeing the devastation that much harder. We are committed to immediately funding wrongful death wildfire cases in large funding amounts for those families that need it. And we will be assisting renters who are displaced by getting cash advances to help them until a final settlement comes.  Our experience in California wildfire cases enables our underwriting team and staff to process approvals quickly for renters, homeowners, and commercial claims."

If you are a lawyer or plaintiff involved in an active wildfire lawsuit and need an immediate cash advance settlement loan against an impending lawsuit settlement, please visit Legal-Bay HERE or call toll-free at 877.571.0405.

Legal Bay has a long history dealing with wildfire lawsuits, as they've been a leader in almost every case over the past seven years. They were one of the first companies to fund PG&E plaintiffs during the California Camp Fire lawsuits back in 2018, and they've remained involved throughout every wildfire and natural disaster since. They are dedicated to supporting their clients in need of financial assistance, specifically those that are dealing with the aftermath of natural wild fire disasters in places like Hawaii, Oregon, Washington, and California.

Numerous renters, homeowners, and business owners have been temporarily displaced, or seen their homes and companies destroyed altogether. Amidst the devastation and uncertainty, people who have been affected by tragedy need help and they need it now. In these circumstances, legal funding—sometimes referred to as "lawsuit loans" or "settlement loans"—can be immensely beneficial. Legal-Bay is leading the charge to provide loans for settlements to affected residents as soon as possible.

As a leading lawsuit funding provider, Legal-Bay knows that relocation efforts can cost their clients money they don't have. Some are looking into loan settlement options in order to fund basic living expenses while they get their lives back on track. A loan for settlement can also help bridge the gap of time it will take to receive that eventual check from the insurance company. Legal-Bay is proud of the numerous funding they've provided for their current crop of clients along with providing a multitude of loan on lawsuit options for any future financial needs.

If you're the plaintiff in an existing wildfire lawsuit and need an immediate advance against your anticipated cash settlement award, you can apply HERE or call: 877.571.0405

Legal-Bay lawsuit funding remains vigilant in helping clients who have seen their homes and properties damaged by recent events. Additionally, any new clients that have an existing lawsuit and need cash now can apply for regular settlement funding to help them get through their own crises. Legal-Bay funds all types of loans for lawsuits including personal injury, slips and falls, car accident lawsuit, property damage, commercial litigation, and more.

Legal-Bay is one of the best lawsuit loan companies when it comes to providing immediate cash in advance of a plaintiff's anticipated monetary award. The non-recourse law suit loans—sometimes referred to as loans for lawsuit or loans on settlement—are risk-free, as the money doesn't need to be repaid should the recipient lose their case. Therefore, the lawsuit loan funds aren't really a loan, but rather a cash advance.

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

Legal-Bay Lawsuit Funding Announces Closing of $10MM Senior Secured Notes

By Harry Moran and 4 others |

Legal-Bay, the premier legal funding company, announced today the closing of $10MM in senior secured notes for their short-term growth plans. Legal-Bay, established in 2006 and one of the oldest legal funding firms in the "Lit Fin" industry, is now poised to aggressively fund car accidents, slip and falls, personal injury, sex abuse cases, sex harassment on job, wrongful termination, discrimination, Bard hernia mesh cases, Hawaii and California wildfire cases, and a slew of other cases with their increased capital commitment.

Chris Janish, CEO of the company, talked about the company's goals, "With this new capital commitment and consistent recurring origination flow each quarter, we are excited about the future. We have a target to become one of the largest legal funding portfolios in the industry over the next four years. This initial capital closing is a bridge for more substantial capital needs over the next twelve months with our business model projecting $25MM to $30MM in additional assets to absorb our anticipated sales growth." 

Legal-Bay is known as one of the best lawsuit funding companies in the industry for their 24-hour approvals and great customer service. They have enlarged their staff to take on the increased volume of clients applying for loans on lawsuits. 

If you are involved in a car accident or another lawsuit that is lagging in the courts and need cash today, you may apply right now for a cash advance on your case.

If you are a plaintiff or attorney involved in an active lawsuit and need an immediate cash advance lawsuit loan against an impending lawsuit settlement, please visit Legal-Bay HERE or call toll-free at 877.571.0405.

Legal-Bay's loan settlement programs are designed to provide immediate cash in advance of a plaintiff's anticipated monetary award. The non-recourse law suit loans—sometimes referred to as loans on lawsuit or loans on settlement—are risk-free, as the money doesn't need to be repaid should the recipient lose their case. Therefore, the lawsuit loan isn't really a loan, but rather a cash advance.

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