Clarifying the 'Probate Lending' Debate: A Response to Professors Horton and Chandrasekher

Third-party funding of legal claims is becoming more common, and has been quietly gaining a foothold in the probate arena. Probate funding, the transaction in which a third party purchases the right to some portion of an heir’s interest in an estate, shares many characteristics with broader litigation funding. It also differs in important respects, and a recent paper shines a light on the practice of probate funding. It does so, however, in a way that is likely to confuse, rather than clarify. Needed clarity is hereby added by illustrating the constraints of a limited empirical study, distinguishing between ex ante risk and ex post results, and strengthening the case that purchasing an interest in an estate is a contingent obligation.