The following is Part 4 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. Parts 1, 2 & 3 can be found here, here and here.
What are the Risks in Probate Funding?
Similar to California Probate Code 11604, (formerly Cal. Probate Code 1021.1), the Legislature, in enacting Probate Code 11604.5, has specifically indicated that Assignments relative to Probate Advances will not be set aside unless it is clear that the consideration paid is “grossly unreasonable”, at the time the transaction was executed. In fact, the Probate Court can presume the validity of an Assignment, in the absence of any objection raised or evidence submitted to the contrary. See Lynch v. Cox. (1978) 83 Cal. App. 3rd 296, 147 Cal. Rptr. 861.
However, nothing in the Probate Code Sections 11604 or 11604.5 indicates a legislative intent to modify the law concerning the evaluation date to be utilized in appraising the fairness of a contract. In interpreting statutes, courts are required to do so in a manner which will produce a reasonable and not an absurd result. See Freedland v. Greco (1955) 45 Cal. 2d 462, 289 P.2d 463. Thus, in the absence of any evidence that the consideration received by the Assignor was grossly unreasonable, at the time received, the Assignee should be presumed to have had the benefit of all the protection the law provides. See Boyd v. Baker (1979) 98 Cal. App. 3rd 125, 159 Cal. Rptr. 298, 304.
Moreover, given that the Probate Funding Company has no assurance of recovery at the time the Assignment is executed, nor any recourse against the Assignor/Heir, it is imperative that the Court consider the many risks a Probate Advance Company assumes during administration. The following are just a few examples of those risks:
*Mismanagement or conversion of Estate funds by the Personal Representative;
*Unanticipated claims, such as Medical, Medicaid, Uninsured Medical Hospital or Nursing Bills;
*Litigation, including but not limited to Will Contests, Property Disputes, Reimbursement Claims;
*Inaction or Delays by the Personal Representative and/or Probate Attorney;
*Previously unknown will discovered, disinheriting the Assignor;
*Spousal/Domestic Partner Support Claims;
*Tax Liability/Litigation;
*Partnership Dissolution;
*Foreclosure of Estate property;
*Child Support Liens;
*Unusually high extraordinary personal representative and/or Attorney Fee Claims;
*Devaluation of Real Estate Market (i.e. 2008);
*Bankruptcy by an heir;
*Litigation against the heir.
Alienation: An Heir’s Right.
Clearly, the Probate court has the jurisdiction to review an Assignment under Probate Code §11604.5 and consider whether the consideration paid was “grossly unreasonable” at the time it was executed. See Estate of Wright (2001) 90 Cal. App.4th 228, 108 Cal. Rptr. 2d 572. Yet, it must be remembered that an heir’s right to alienate his/her interest is an important one and should not be infringed upon in a random or desultory manner. See Gold, et. Cal Civil Practice: Probate and Trust Proceedings (2005) §3:86, p. 3-78. Conditions restraining alienation, when repugnant to the interest created are void. See California Civil Code §711.
In this vein, Courts should also consider the fact that the lion’s share of heirs who have obtained probate advances have done so out of their own free will, without solicitation and/or direct marketing.[1] Many heirs who research probate advances find that it is a preferred option to loans or other sources of funding, which take substantial time to qualify, require credit checks and extensive documentation and create personal obligations. Therefore, as long as terms of the Assignment are simple, straightforward and unambiguous – and it appears on its face that the Heir was given full disclosure and consented to the transaction – Courts should be hesitant to interfere with the Heirs’ right of alienations.
Conclusion
It is intellectually dishonest to ignore the obvious legal distinctions between Probate Assignments and Loans. Probate Funding Companies like IFC provide a valuable option for many heirs who would not be able to qualify for a traditional loan and/or do not wish to personally obligate themselves. Probate Funding Companies assume a myriad of risks while administration is pending with no guaranty of absolute repayment. In California, the Legislature has enacted Probate Code Section 11604.5 which governs the transfer of a beneficial interest in the form of an Assignment, and clearly distinguishes these transactions from loans. Further, that section affords the Probate Court all the authority it needs to review Assignments and determine whether, at the time the Assignment was given, the consideration paid was grossly unreasonable. In reviewing its terms, Courts must always consider an Heir’s inherent right of alienability. If fair disclosure was given by the Probate Advance Company, and it is found that the heir understood and consented to the Assignment, the Court should be very cautious in modifying the terms of an Assignment, ex post facto.
In part 1 of this series, we cited just one case of many which demonstrates why Probate Funding is a useful option for so many heirs, and a far better option than a recourse loan. In that case, Ms. Tanner would have likely lost her house to foreclosure if it was not for the availability of the Probate Advance provided by IFC. In hindsight, Helen Tanner made a very good deal for herself – even if she had the ability to qualify for a loan, the cost to her over such a protracted period would have been significantly greater. On the other hand, the return for IFC, some nine (9) years later, was considerably less than ideal.
That being said, the end-result in Tanner was far better for IFC than in the numerous other Estates in which it has incurred significant losses through the years. Heirs/beneficiaries are fortunate that there are Companies willing to take risk and pay heirs a sum of money for a fixed Assignment during Probate administration with zero personal recourse against the heir.
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] Over 90% of heirs seek funding through IFC’s website, by other heirs who have already contracted with IFC, by lawyers or personal representatives.
