A: This question is not terribly clear. This is the way I understand it, and, as such, will try to answer it:
"Wrongful death and survival actions have been filed. I have custody of a child, who would be a beneficiary if the suit is successful and results in a recovery. Can I get either an advance or a loan using the "expectancy of success" as collateral? If so, can I use that advance or loan either for my benefit or for the benefit of the child?"
In most instances, when a "death action" is filed, it is actually in two parts, wrongful death and survival. The survival action is a claim of the deceased person's estate and runs through the estate. That part is even subject to inheritance tax in the same way that an inheritance would be taxed. The wrongful death component does not go through the estate. It passes directly to statutorily defined beneficiaries and is not subject to tax.
Any distributions to a minor would be subject to court approval. Thus, if you were to be able to get an advance or loan, it would first require court approval. However, if you put that aside for discussion purposes, it is highly unlikely that you could get a loan or advance because every lawsuit carries uncertainty with respect to the ability to succeed and the amount of the recovery. Thus, I would be extremely surprised if you would ever be able to get an advance or a loan against this expectancy, particularly since it apparently is not even yours.
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