KAUS, P. J.—I respectfully dissent. I do not disagree with the majority’s holding that the public administrator cannot just file a “motion to inquire” under section 1020.1 of the Probate Code and thereby place both the burden of going forward and the burden of persuasion on the assignee’s shoulders. If the Legislature had wanted every assignee to have to prove that the consideration for the assignment is not “grossly unreasonable” it could have said so in simple language. At the same time I disagree that the mere fact that the assignments are in writing imports more than there is consideration adequate to support a simple contract—which is not the issue in a section 1020.1 inquiry. Finally I have some problems in understanding just what, under the majority opinion, it would take to impose some kind of burden on the assignee.
These problems are not, however, my primary concern. Contrary to the assertion in the majority opinion, it appears to me that the assignee engaged in highly questionable practices with respect to legal representation for the heirs. The file contains one express letter to an heir which I [306]copy in the appendix. I gather that it is typical of what the assignee advises heirs concerning legal representation. It is clearly misleading, in that it implies a mútality of interest between assignee and heir which does not, in fact, exist. First I very much doubt whether the attorney picked by the assignee considered it part of his duty to the heir to explain that he could attack the assignment under section 1020.1. Second, even if the assignor’s and the assignee’s interests coincide as to the total amount which the heir is to receive from the estate, the heir may have problems of timing, taxes, nature of interest and so forth about which the assignee could not care less and which, to avoid delay, he does not want raised. Finally there may be conflicts as to specific properties between two or more of the heirs whom the assignee has signed up for one third each. The assignee does not care whether he gets $33,333.33 from one heir who inherits $100,000 or $11,111.11 from three heirs who each get a third of $100,000.
I am not sure just what remedy the probate court should have undertaken. Perhaps voiding the assignments would have been too drastic. I am, however, certain, that contrary to the majority opinion, the record contains ample evidence of deceptive, improper practices with regard to the assignee’s legal representation.
APPENDIX
File No. 8732
November 28, 1973
Mr. Samuel C. Lynch 9207 Hidden Valley Court Mentor, Ohio 44060
Re: Estate of Irvin Harold Lynch
Dear Mr. Lynch:
Thank you for the courtesies extended our Mr. Donald Hanses when he spoke with you on the telephone.
In explanation of our interest in this matter we wish to state that we make a business of locating missing or unknown heirs to known estates. To give you some idea as to how we operate we will outline our usual procedure in processing cases such as this.
1. When we locate the heirs we obtain from them a partial assignment of interest in order to compensate us for the time, money, and effort we have already expended in locating the heirs and advising them of their possible interest in an estate. [3072]. Upon receiving the executed assignment contracts from the heirs we retain and pay the fees of an attorney at the situs to protect our assigned interest.
3. In order for us to have an interest to be protected the attorney must establish to the Court’s satisfaction the identity and relationship of the heirs to the decedent, since our assignment is contingent upon the heirs receiving funds from the estate in question.
4. Since there is no additional work necessary on the part of the attorney he is also willing to represent and protect the heirs’ interest in the estate and make no charge for such services rendered in the heirs’ behalf, provided such heirs request him to act in their behalf.
5. The heirs are perfectly free to retain any counsel of their own choice at the situs to protect their interest in the estate. However, since we have already committed ourselves to pay an attorney a fee for protecting our interest the heirs cannot expect us to pay such attorney’s fees.
6. When distribution occurs the heirs’ checks are forwarded to their bank and instructions are given to pay the heirs their net distributive share and return to our bank our assigned interest, i.e., if the heirs received $900.00 their bank would pay them $600.00 and return to us our one-third fee or the sum of $300.00. We would then pay our attorney at the situs his fees.
7. In the event no money is distributed to the heirs the time, money, and effort invested by this company would be a loss borne solely by us and the heirs would not be out of pocket one cent. Our A assigned interest is computed on the actual money received by the heirs. Federal and State Inheritance Taxes, Administrator’s fees, etc. are all deducted and held by the Court and our fees apply only to the net amount of money actually distributed to the heirs.
We enclose herewith our standard Agreement and Assignment form granting us a A interest in the net amount of money actually distributed to you from this estate.
We have received an identical Agreement and Assignment form executed by your cousin, Mrs. Carmen Norris, and are negotiating with your cousin, Russell Conroy.
As Mr. Hanses pointed out to you on the telephone, we have locked horns with our competition in connection with this estate, and while we will represent part of the heirs the competition will represent another portion.
About the only thing that would be germane in our argument is that we have been in this business for over 60 years and consider ourselves to be the Cadillac of the industry.
We trust we will be hearing from you soon with regard to utilizing the services offered by our firm, and that the executed Agreement and Assignment contract will accompany your response. This form should be signed in the presence of one witness.
Sincerely yours,
W. C. COX AND COMPANY
RES:reb Enc.
By: Richard E. Shade