Personal bankruptcy and donations - the risks to Schenker and donee

Personal bankruptcy and donations - the risks to Schenker and donee

Donations in insolvency are risky.

In the personal bankruptcy you must disclose your financial circumstances. These generally includes any donation you have made in recent years. With donations, the law presumed fact that you have thereby reducing your estate or it may be done with the knowledge to discriminate against your creditors. Depending on what stage of your debt you act different laws apply. As a result, although they have the same consequences.

In the personal bankruptcy you are required to report

  • A personal bankruptcy process is preceded by regularly that a creditor has requested you to submit the affidavit or asset information. Pursuant to § 802c II 3 ZPO you are required to provide any facts that may justify a challenge after challenge law (§§ 3 II, 4 AnfG).
  • You must first specify any remunerative sale to a related party, you have made in the last two years. A related party as defined § 138 Insolvency your spouse or registered partner and relatives in a straight line and people who live with you in the same household. Remuneration, any service provided, the donee to you.
  • In addition, you are required to provide free services, you have made in the last four years - unless it is common occasional gifts.
  • Note that also mixed donations are contestable. So, you must also specify for example, the transfer of a property when the transfer is done with the assumption of a maintenance obligation. The same applies to the grant of a right of use (residential rights, usufruct) to the property. Prerequisite is that you inflowing capitalized (that is of value to be detected) Advantage does not reach the value of the gift.

Your donation is contestable

In the insolvency proceedings, the law recognizes four different periods.

  • Apply for personal bankruptcy proceedings, the liquidator or trustee or a creditor may challenge a donation in accordance with § 132 Insolvency Act because creditors deprivation. The necessary connection exists irrefutable, if you pass in the last three months prior to the filing of the application the gift that you were at that time already insolvent and the buyer knew or should have known about your situation.
  • Furthermore, the appeal is possible, if you give and involve intentionally with the aim to discriminate against a creditor. The beneficiary must know your intention (§ 133 Insolvency Act I).
  • Furthermore, the challenge (§ 133 Insolvency Act II) is concerned, if you sell something valuable consideration to a related person (spouse, family member) and a creditor is at a disadvantage.
  • For a donation within four years before the filing of bankruptcy petition, you must also reckon with the challenge. Occasional gifts (birthday gifts with low value) remain (134 Insolvency Act §) out of consideration.

Always act in terms of risk assessment

  • Your risk as Schenker and of course the risk to the person receiving is that the gift must be transferred back to your assets. It is then access your creditors. The example "Schlecker" makes it clear what is meant.
  • If you have the gift of a property to arrange a re-transfer claim in the event of divorce with your spouse with respect, the claim is subject to attachment. This method also is regularly closed. As long as the divorce fails, the attachment to the creditor, however, remains worthless.
  • Note also that you become criminally responsible if you bring the offense of bankruptcy in the event of your inability to pay through your donation (§ 283 StGB).

Avoid risks

  • To avoid risks of this kind, you should especially in an economic crisis situation in which you have to expect to the creditors or personal bankruptcy, avoid donations as possible. In case you still want to transfer an asset, you should do this for consideration to fair and adequate compensation. This consideration is of course at your leisure, as long as a creditor access occurs or you have not yet applied for personal bankruptcy.
  • Otherwise, you must make sure that you consider when donations at least the four-year period. Alternatively, the two-year period is advantageous if the transfer is made for consideration. To intentional transfers of assets you should not. They usually eventually result in even more trouble.
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