It is in a safe deposit box…
Alive or dead, a gift made to stiff one’s creditors can be deemed a fraudulent transfer, and the creditors potentially can recover the property from the recipient of the gift.
That doesn’t sound like “nothing” to me. It sounds like weeks and months of finding professionals, calling professionals, dealing with professionals. It’s a lot more than I’d want to put up with for someone I was totally estranged from.
When there is a transfer of an asset from an elder parent to an adult child without any proof of an intent to gift absolutely, you have to look at the law of the jurisdiction. Does the jurisdiction’s law start with the rebuttable presumption of advancement, or does the jurisdiction’s law start with the rebuttable presumption of resulting trust?
The smart money is on the old guy writing out, signing and dating a letter in front of a witness stating that the gold is a gift, and then stapling it to the son’s forehead while shouting “Don’t lose this letter!”
If the old guy lived for a few more years, paying his regular bills along the way, then not problemo. If the old guy was in default and had creditors pounding at his door when he made the gift, then there is a good chance that the gold would be reeled back by the creditors as a fraudulent conveyance (again, depending on the laws of the jurisdiction).
Dying broke is usually a good thing when it comes to intergenerational transfer if there are death taxes/fees, but leaving it to the last minute is often a very bad thing that scuppers the transfer.
Transferring wealth well ahead of death has it’s own risks for elders, namely the recipient legally scarpering off with the assets, or running into financial trouble and losing the assets, leaving the elder hungry, wanting to buy groceries for a three course meal, but finding himself without any recourse other than to sue for parental support (if that jurisdiction’s law includes parental support).
That’s the nice thing about dysfunctional families: they keep lawyers in business.
Have you talked this over with the rest of your family? His death could have an effect on them, even though they are estranged. You say he doesn’t have any personal items that you might want, but do you know the same is true for everyone?
Also, do your family members know they’re not likely to get anything from his estate? You’ve kept contact with your dad, so it seems likely you know a lot more about his financial situation than they do. If they think the estate will be worth something to them, they could get really angry with you if you take no action when your dad dies. They might even think you’re grabbing his assets for yourself. If I were in your position, I would explain things to your family now, and encourage your dad to write a will where you’re not the executor.
As for your dad giving you the $10,000 in gold before he dies: would that even be legal considering he has a large judgment against him? And if the gold is mentioned in the will, would that cause any problems for you?
I didn’t “counsel” anything. I stated that it is commonly done, and frequently gotten away with, and in a trivial estate, likely to go unchallenged. Implicit ih what I said was that it was illegal, and you’d be taking your chances.
This is Minnesota if it makes a difference, the judgement are over 10 years old if it makes a difference. AFAIK his creditors have stopped calling long ago.
I am sure there’s not any personal items that other immediate family and former family members might want. Most of the “family heritage”- photos, and whatnot, stayed with us, but I might ask if he has anything his relatives back in his home might want.
It’s a bit uncomfortable to me talking about this stuff with him, but since he’s almost 80…
You make me laugh.
If you implied it was illegal, please point it out, because I don’t see it.
If he owes you money, you need to register as one of his creditors, so when his stuff is liquidated, you will get back what he owes you. There may be a way to say “I don’t want my share liquidated; I want gold at current prices.” IANAL, however. I would consult a real one-- a lawyer, that is.
under CA law (I suspect this is common in all of Us (maybe not La):
A debt never “dies” - it can be paid off or discharged through bankruptcy, but it will never die.
The Statute of Limitations on debt simply mean that, after X years, the Courts cannot be used to enforce the debt.
Before the Web, the passage of time and a move to another State meant the old creditors never learned of the death until well after probate had discharged the debt.
I suspect that has changed.
A “gift” meant to defraud creditors can be challenged and the value of it “clawed back”.
Saying “I spent it! You Lose!” will get you nailed as the debtor.
So: he needs to get rid of any/all assets. Wait 2 years (or however long local law specifies), then file bankruptcy, Chap 7 to ditch the old debts.
Otherwise, the gold either stays with the estate or somebody will come looking for it - esp. if they find notes indicating he had it within 2 years of his death.
If it stays in the Safe Deposit box (assuming this is a bank) - the bank should not allow anyone to open the box without legal authority to open it - the Executor or an heir after the estate is settled and the heir can prove he is the legal owner.
If you want to steal it, at least have him get it out of the box and somewhere easily opened.
I didn’t say you should steal and lie; I only said that if you did you’d probably get away with it. I mean, who’s gonna know, right?
Was it “A Certain Kind of Death”?
Good movie, and sad too.It may make a difference. A quick web search shows that a judgement expires after 10 yearsunless renewed. May be worth verifying.
He can make you a gift every year, and $10,000 is below the IRS limit. I would get this taken care of sooner rather than later. If you want to document that it is a loan payment, you can do so, but it sounds unnecessary.
Does your sister own her own home? If not, perhaps it would be worth talking to an attorney about this. Homes may (depending on jurisdiction) be protected from the judgment. Talk to an attorney about whether there is any way to protect the home in the event of your father’s death. The answer may be no, or it may be, yes, if he sets up a trust or if she is on the mortgage or ?? I don’t think it would be expensive to set up a meeting to at least discuss the issue. (Or maybe it would be in your name - whichever - have the conversation at least)
Isn’t this kind of a distinction without a difference?
A debt that’s been discharged through bankruptcy, or that is past the statute of limitations is one you don’t have to pay. How is that different from a debt that doesn’t exist?
Read again.
Until the Web, an old debt was never seen again.
Now, unless discharged or paid, that debt will show up with a claim against the Estate.
It never dies - the old verbiage for a Will read “after payment of all just debts” - old CC’s may roll off you credit report, and the phone may stop ringing - but it is still a “valid debt” and, if presented for Probate, must be paid - in full or pro-rated, but paid.