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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6513
Experience:  Wills, Trusts, Probate & other Estate Matters
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My mother gave me a diamond ring several years ago. It is mentioned

Resolved Question:

My mother gave me a diamond ring several years ago. It is mentioned in her will which was written before it was gifted to me. She passed and we are now prbating the will. Since there are creditors, they want to appraise and sell the ring. My brothers know it is mine and has been.
Can I show it is no longer an estate asset?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Thomas McJD replied 1 year ago.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

Did she actually gift it to you and place it in your possession (i.e., did you take the ring at that time and have you been keeping it with your own jewelry and possessions)?

Customer:

yes...I have had in my possession the entire time

TMcJD :

Great. That means your mother made a completed gift to you during her lifetime. This is known as an inter vivos gift, which requires 1) the intent to make a gift, 2) delivery of the object of the gift to the intended recipient, and 3) acceptance of the gift by the intended recipient. Because this is a completed gift, the ring is was not hers on her death and is not part of her probate estate. Because the ring is not a part of her probate estate, it is not subject to the claims of creditors. You can tell them she gifted it to you during her life and it is not part of her estate.

TMcJD :

Please let me know if you need additional help. If not, I would be grateful if you could please leave me a positive rating for my assistance. I cannot receive credit for my work without your positive rating, and that is the sole means by which JustAnswer experts are compensated for their time. Thanks.

Customer:

What proof will I need to provide that she gave it to me before ? witnesses that saw it?

TMcJD :

If there were witnesses to the gift, that would be good. If not, just an affidavit or testimony from everyone that can state they knew she gave it to you and you accepted the gift during her lifetime. As long as the court is convinced it was in your possession on her death and not hers, which will be easy with a little bit of supporting information from others, then you'll have no issues.

Customer:

Phew! thank you so much

TMcJD :

You're welcome. Just remember, to prove a gift you need to show those three elements noted in my answer. ANY facts that you think support those three elements can and should be brought to the attention of the court if this creditor tries to raise a stink.

TMcJD :

Again, I would very much appreciate your positive rating at this time unless you need more assistance. And, of course, please let me know if I can help with anything in the future. Have a great day!

Customer:

The creditor is medicaid...Are they sticky?

TMcJD :

Yes, they are

Customer:

It is the court that will decide correct?

TMcJD :

But a wedding ring is exempt from calculations for Medicaid eligibility and your mother had the right to make a gift to you, which she did.

TMcJD :

Yes, the court.

Customer:

it is not a wedding ring....does that matter?

TMcJD :

It could, yes, a ring that was not a wedding ring is normally included in "resources" for determining eligibility. If she didn't disclose ownership at the time of trying to qualify, then they might be able to go back and take the ring back since she shouldn't have qualified except for selling the ring and spending down the cash. That's a whole different situation and would require research by an attorney -- you could have your local attorney look more closely at that issue.

Customer:

but the ring was gifted well before she went on medicaid. 3 years prior. she did not have it then.

TMcJD :

Yes, but Medicaid counts the value of gifted assets as long as those assets were not-exempt and were gifted within 5 years before trying to qualify for Medicaid. So, it would have been included in the value and she would have had a slight delay before Medicaid began paying benefits (basically the delay would have been for the amount of time she could have paid for her own care based on the value of the asset gifted and not exempt).

Customer:

They can add that to her medicaid bill but they can't take back something she already gifted right?

TMcJD :

No, they might actually be able to take it back. The only time they certainly wouldn't be able to take it back is if someone had paid value for the ring and took it with no knowledge that the transfer might be void or voidable. Again, I cannot say with certainty that they even would still have a claim with regard to the ring. It involves lots of questions like the statute of limitations, the validity of the initial gift transfer, whether they could undo that transfer now and get the ring back for sale or whether they could only claim an interest in the value against the estate. The Medicaid issue, and the ring not being a wedding ring, changes the whole landscape of the question and just can't be answered with certainty without a substantial investment of time in researching the law.

TMcJD :

This was NH -- correct? If so, give me a minute to look something up that might be helpful. Just let me know if the state is correct.

Customer:

yes

Customer:

are you still there?

TMcJD :

Okay. Sorry for the delay. You'll definitely want to verify this with your local attorney, but it appears that in NH, the non-countable resources includes jewelry, not just a wedding or engagement band or ring. In other words, the exclusion is a bit broader. That would take us back to the original discussion.

TMcJD :

There is a thorough discussion of the law at the following link:

TMcJD :

http://www.butenhofbomster.com/articles/MedEligibility.htm

Customer:

thanks again...you are right..when I filed they only asked about bank accounts, real estate, cars, etc

Customer:

thanks --I will give a good review!

TMcJD :

You're welcome. Glad I could help. I know this is a very tricky area of the law. Have a great day!

TMcJD :

Just wanted to check back with you and make sure you didn't need anything else and were not having trouble with the rating system. The website has been buggy lately. Thanks.

Customer:

Something happened when I tried to save the conversation---it said "loading data " and froze

Customer:

did my rating not come through??

Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6513
Experience: Wills, Trusts, Probate & other Estate Matters
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