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Category: Bankruptcy Law
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Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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I gave my brother and sister a gift of $10,000 each 13 months

Resolved Question:

I gave my brother and sister a gift of $10,000 each 13 months ago.
My business is now failing and I need to file bankruptcy.

Can any bankruptcy rules affect my gifts? Can the trustee or the court force my gifts to be rescinded?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 4 years ago.


Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on


Will you be filing a personal bankruptcy?


How soon?


The Bankruptcy Code permits a trustee (or a debtor in possession) to recover from creditors payments made shortly before the bankruptcy filing where the payment gave the creditor more than other, similarly situated, creditors would get through the bankruptcy process.

The policy behind the statute is to diminish the advantages that a creditor might get by litigation or by aggressive collection actions that force the debtor into bankruptcy. That is accomplished by making payments received in the 90 days before the filing recoverable in bankruptcy.


Bankruptcy Code §547 defines a preference as

  1. Payment on an antecedent (as opposed to current) debt;

  2. Made while the debtor was insolvent;

  3. To a non insider creditor, within 90 days of the filing of the bankruptcy;

  4. That allows the creditor to receive more on its claim than it would have, had the payment not been made and the claim paid through the bankruptcy proceeding.


The bankruptcy code also permits the recovery of payments on old claims owed to insiders, such as relatives, corporate officers or directors, or related entities. For insiders, the trustee can look back to payments made within a year of the bankruptcy filing. This provision attempts to prevent the debtor from paying relatives and business decision makers at the expense of the trade creditors.


In your situation the gifts would be clearly insider payments and the trustee could go after them if made within one year of the transfer,


Since it has been over 13 months since the gifts, you would be fine,


and the trustee could not come after them, however in my opinion, I would try to delay the filing for a few months if possible, so their is no issue,

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