Heir hunting. This slightly ominous term refers to the practice of sophisticated individuals and companies scouring probate filings, conducting genealogical research, and contracting with heirs of intestate decedents to provide help with probate proceedings in exchange for a cut of their inheritance. The practice originated in 1850s England before crossing over to the United States, and despite the prevalence of heir hunting, its legal treatment is murky at best. Academic scholars have failed to give it the attention its longevity would seem to warrant. Professors David Horton and Reid Kress Weisbord rectify this neglect and seek to understand the reality of heir hunting through an empirical study of San Francisco County probate filings. The professors’ findings guide their critique of heir hunting, and they propose legislation that provides a time and place for the practice in the present day and mitigates the serious harms it can cause.
The legal history of heir hunting is complex. Courts initially invalidated heir hunting contracts under the doctrine of champerty, which prohibits a third party from pursuing another’s legal claim. However, courts did not always employ the same logic when they struck down these contracts. Some courts voided the contracts because they encouraged litigation, and others pointed to heir hunters’ meddling with the duties of actual estate administrators. To make sense of these discrepancies, Professors Horton and Weisbord distinguish the differences in court opinions with two ideas: the “litigiousness” theory of champerty and the “interference” theory of champerty.
Although some courts remain steadfast in their recognition of the doctrine of champerty, the doctrine has fallen from favor over time. Additionally, heir hunters have become smarter in navigating the law; questions about ethics, unclaimed property, and litigation funding have complicated the legal landscape; and courts have moved from almost uniform invalidation to more frequently upholding these contracts because of the benefits they may confer.
The result is that no clear legal treatment of heir hunting exists to guide courts, legal professionals, and even lay individuals. Inconsistency in the courts has not inspired widespread legislative reform; only two states—California and New York—have statutes addressing heir hunting. Heir hunters are mostly free to target unknowing heirs however they choose.
To analyze these issues, the professors worked with a data set of probate filings over two years in San Francisco County (a county that allows free access to court filings). Although the professors found that heir hunting occurs in a relatively low percentage of total probate matters, heir hunters generate high numbers of assignment contracts when they do involve themselves in a case. Those contracted-for assignments average at 20% of an heir’s inheritance. Heir hunters have an impressive geographic spread, reaching states across the United States and even other countries. Heir hunters also have access to extensive genetic information, advanced knowledge of descent and distribution laws, networks of attorneys, and sufficient understanding of probate processes. In other words, heir hunters employ a business model that on one hand might be seen as pervasive and on the other sufficiently thorough to be particularly helpful.
Professors Horton and Weisbord make two useful critiques of heir hunting based on statistical analysis of these findings. First, the blanket approach of invalidating heir hunting contracts under champerty is imperfect because, while it mitigates the consumer protection concerns around the practice, it also precludes any of the beneficial results heir hunting produces. Second, heir hunting creates serious ethical issues with respect to conflicts of interest and dual representation.
Some commentators consider heir hunting to be beneficial because these people-finding experts resolve complex family trees and prevent intestacy matters from languishing in probate court limbo. Other commentators point out its downsides: heir hunting can be exploitative of lay individuals and give rise to litigation and premature intervention in court cases that concern heir hunters only as a business opportunity. The study’s findings confirm that this tension exists and support the professor’s “litigiousness” theory of champerty. Heir hunters do help solve genealogical mysteries and provide other benefits, such as detecting petitions that omit heirs. But still over 45% of surveyed estates involving heir hunters “degenerated into litigation” with an increased association between heir hunters and probate conflict. The findings also confirmed that heir hunters intervene extremely early in the probate process and often before a probate court has even appointed an estate administrator to locate heirs.
Also noteworthy is the scope of ethical issues heir hunting creates. Although heir hunters have become more sophisticated over time, the professors emphasize that they still maintain significant control over client-heirs’ legal representation. Heir hunters effectively persuade heirs to accept their contract offer and resources, such as free “independent” attorneys who have ongoing relationships with the heir hunters, raising the ethical questions of third-party solicitation and dual representation.
Ultimately, heir hunting cannot be evaluated and addressed without considering both the benefits it provides and the harms it can cause. To resolve these concerns in a way that preserves the good and mitigates the bad, Professors Horton and Weisbord propose legislative changes to regulate the heir hunting industry that include two components: capping heir hunting fees and barring heir hunting for a defined period of time until an estate administrator has the opportunity to find a decedent’s heirs. The professors argue that these are simple and effective ways to prevent overcharging of heirs, reduce litigation and ethical concerns, and limit heir hunting practices to those that truly benefit heirs.
In a world in which so many people continue to die intestate, Professors Horton and Weisbord provide nuanced recommendations for heir hunting to continue in the present day. I commend the professors for dedicating much-needed attention to a fascinating and controversial issue that has flown under the radar for so long. This article was enlightening and addresses a subject that every estate planning and probate professional ought to keep in mind.1
Editor’s Note: Reviewers choose what to review without input from Section Editors. Jotwell Trusts & Estates Law Section Editor Reid Weisbord had no role in the editing of this article.
- Special thanks for the outstanding assistance of Ana Mitchell Córdova, J.D. Candidate May 2022, Texas Tech University School of Law, in preparing this review.