On Petition for Rehearing.
[¶ 26] Ray Rudolph, individually and as Personal Representative of the Eileen Rudolph Estate, and Della Rudolph filed a Petition for Rehearing. We granted the petition, restored this cause to the calendar, requested briefs and heard arguments. On direct appeal, we affirmed the *32judgment of the trial court, concluding Eileen Rudolph abandoned her homestead and fraudulently transferred real property to Della Rudolph. Upon rehearing, we reverse in part the judgment of the trial court and remand for further proceedings consistent with this opinion.
I
[¶ 27] On Petition for Rehearing, the Rudolphs contend Eileen did not abandon her homestead when she transferred it to her daughter-in-law, Della. Upon further consideration, we agree.
[¶ 28] In our original opinion, we stated “there is no more convincing proof that abandonment has occurred than the sale of the homestead,” Farstveet v. Rudolph, 2000 ND 189, ¶ 16, 2000 WL 1594223, and in support of this proposition, we cited several bankruptcy cases. In Re Cole, 205 B.R. 382, 385 (Bkrtcy.E.D.Tex.1997); In Re Michael, 49 F.3d 499, 501 (9th Cir.1995); In Re Levy, 185 B.R. 378, 387 (Bkrtcy.S.D.Fla.1995). We are persuaded, however, that those cases are distinguishable 'from the instant case because they involve abandonment in the context of bankruptcy proceedings. In Re Cole and In Re Levy involved situations where the debtor, after conveying the homestead, filed a bankruptcy petition and then attempted to claim the homestead exemption. In Re Cole, 205 B.R. at 385; In Re Levy, 185 B.R. at 381-82. In Re Michael also involved a debtor’s attempt to claim a homestead exemption post-petition in bankruptcy proceedings and specifically applied Montana law. 49 F.3d at 500-01. In a bankruptcy context, the issue of whether abandonment has occurred must be considered in light of the situation as it existed on the date the petition was filed “since the exemption and the resulting ability to invoke the benefits of section 522(f)(1) are created as of that date.” In Re Lippert, 113 B.R. 576, 578 (Bkrtcy.D.N.D.1990).
[¶ 29] Such was not the case here. On March 23, 1998, and before judgment was entered against Eileen, Eileen transferred her homestead to her daughter-in-law, Della. A creditor cannot set aside as fraudulent a transfer of property that the debtor could have claimed as exempt. Jahner v. Jacob, 515 N.W.2d 183, 186 (N.D.1994) (analyzing our decision in Congress Candy Co. v. Farmer, 73 N.D. 174, 12 N.W.2d 796 (1944)). “[A] creditor may challenge a transfer for fraud only if the property would be subject to levy and execution if revested in the transferor.” Id. Because Eileen could have claimed the homestead property exempt while she possessed title to it, the Farstveets cannot enforce their claim against the homestead after Della acquires title to it. Eileen’s transfer of her homestead in this context does not constitute abandonment. In order for the transfer to be challenged as fraudulent under these circumstances, abandonment must be established based upon facts independent of the transfer of the homestead. To the extent this conclusion is inconsistent with our initial opinion, that opinion is modified. Farstveet, 2000 ND 189.
[¶ 30] We now turn to the issue of whether there is some evidence other than the transfer to support the trial court’s findings that Eileen abandoned her homestead.
[¶ 31] Homestead rights are not easily lost, and traditionally we have jealously protected such rights. This Court has concluded a debtor’s removal from his homestead due to poor health does not constitute abandonment. Meidinger v. Security State Bank of Medina, 55 N.D. 301, 213 N.W. 850, 851 (1927). In Meidinger, after the debtor left his home, his furni*33ture was sold at a public auction and his house was leased to his son-in-law. Id. The removal of the debtor from his homestead for the purpose of seeking care, when he was not able to care for himself, is not abandonment of the homestead. Id. The debtor, rather, was forced to leave due to necessity, and therefore, his departure from his home is not a voluntary act. Id.
[¶ 32] This Court has also concluded a defendant’s absence from his home and the subsequent leasing of his homestead are not sufficient evidence of abandonment. Larson v. Cole, 76 N.D. 32, 33 N.W.2d 325, 329-30 (1948). In Larson, our Court stated:
It is claimed on behalf of the plaintiff that the defendant’s intent to abandon the homestead rights in these premises is shown by his offering them for sale and giving a written option for their purchase to the plaintiff[,] by disposing of much of his household furniture, by leaving the State and renting the premises to the plaintiff, and by his general conduct. Any of these circumstances coupled with clear intention to abandon the homestead would be sufficient proof of abandonment. All of them together would be insufficient unless coupled with such intent.
Id. at 329. There was no other clear and convincing evidence suggesting defendant intended to abandon his home, and accordingly, this Court concluded the defendant did not abandon his homestead. Id. at 330.
[¶ 33] The trial court found by clear and convincing evidence that Eileen abandoned her homestead because after she was taken to the senior care facility, her grandson, Wade Rudolph, and his entire family moved into her house; Eileen never moved back; the grandson never paid any money to Eileen; and the family sold off all of Eileen’s assets to pay her medical and other bills.
[¶ 34] The trial court did not make a specific finding Eileen originally left her home voluntarily. The evidence in the record indicates she left her home involuntarily because she began to experience difficulty with the prostheses in her knees and was hospitalized. She later was moved to the senior care facility where she remained because of her physical condition. To find abandonment, it must be voluntary and without an intention to return. Larson, 33 N.W.2d at 329. We have long recognized that involuntary or compulsory absences from the home have never per se constituted relinquishment of the homestead rights. See Larson, 33 N.W.2d at 329; Meidinger, 213 N.W. at 851; Grotberg v. First Nat. Bank, 54 N.D. 548, 210 N.W. 21, 24 (1926); Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912, 915 (1917). Instead, it is absence from the home coupled with the clear intention to abandon the homestead that is sufficient proof of abandonment. Larson, 33 N.W.2d at 329. There is no evidence indicating Eileen left her home voluntarily, remained away voluntarily, or that she made any declarations regarding her intent never to return to her homestead.
[¶ 35] The removal of Eileen’s assets from her household and the subsequent sale of these assets do not in themselves constitute abandonment. In both Meidinger and Larson, the debtors’ removal and sale of their household goods and furniture were insufficient evidence to establish abandonment even when considered with other circumstances. Here the trial court specifically found that Eileen’s household property was sold to pay her medical and other bills.
[¶ 36] Moreover, permitting Eileen’s grandson to move into the homestead did not conclusively establish aban*34donment of the premises. Our Court has stated “[t]hat the defendant leased the property is not necessarily an indication of abandonment of homestead.” Larson, 33 N.W.2d at 330. Such actions are not inconsistent with an intent to return to the homestead because it is not uncommon for homeowners while away from their homes to request friends or relatives to reside in their homes so as to provide upkeep and to safeguard the property. Eileen’s grandson did not pay rent, but he did pay the utility bills and provide for the general upkeep of the house. Without evidence of a clear intent never to return to her homestead, all of the circumstances found by the trial court are collectively insufficient to establish abandonment.
[¶ 37] Although voluntary and not compulsory absence can be evidence of abandonment and the leasing of the homestead property can be some evidence, but not alone conclusive evidence, of intent to abandon, we conclude, after a review of the entire record, the trial court could not have found that there is clear and convincing evidence to establish Eileen’s absence from her homestead was voluntary or that she intended never to return to her homestead. Therefore, the trial court erred when it found Eileen abandoned her homestead. Our prior affirmance of the trial court on this issue is modified. Farstveet, 2000 ND 189.
II
[¶ 38] In our original opinion, we concluded the trial court’s finding that Eileen’s transfer of the subject property was fraudulent was not clearly erroneous. We reached this decision after we concluded Eileen abandoned her homestead. Once Eileen abandoned her homestead there was no question that the homestead and other property were assets within the meaning of the Uniform Fraudulent Transfer Act. N.D.C.C. § 13-02.1-01(2). However, because we modify our opinion and conclude Eileen did not abandon her homestead, the issue becomes whether the non-exempt property qualifies as an asset within the meaning of the Act.
[¶ 39] The Rudolphs argue the non-exempt property transferred from Eileen to Della is not an asset for purposes of the Uniform Fraudulent Transfer Act and, therefore, cannot be the subject of a fraudulent transfer. If the non-exempt property is an asset within the meaning of the Act, the transfer of such property is a fraudulent transfer under N.D.C.C. § 13-02.1-05(2) based on our opinion in Farstveet v. Rudolph, 2000 ND 189, ¶¶ 23, 24. If, however, the property is not an asset within the meaning of the Act, the property is not subject to a fraudulent transfer under N.D.C.C. § 13-02.1-05(2).
[¶ 40] As defined by the Act, an “ ‘[a]sset’ means property of a debtor, excluding property to the extent it is encumbered by a valid lien, property to the extent it is generally exempt under non-bankruptcy law, or an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.” N.D.C.C. § 13-02.1-01(2). Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Act and is not subject to a fraudulent transfer.
[¶ 41] Relying on § 13-02.1-01(2), N.D.C.C., the Rudolphs argue the non-exempt property is encumbered by valid liens that exceed the value of the property. The trial court, however, did not determine the separate values of the homestead and the non-exempt property, and we are, therefore, unable to conclude whether there is equity in the non-exempt *35property.2 Once the court establishes a value for the non-exempt property, it must subtract the mortgage and judgment lien to determine if there is equity. Although the mortgage is enforceable against the entire property, the Rudolphs can require the mortgagor to resort to the non-homestead property first, even though doing so would defeat the rights of a junior lien-holder.3 Douglas County State Bank v. Steele, 54 N.D. 686, 210 N.W. 657, 659 (1926). See also N.D.C.C. § 35-01-15. If the value of the non-exempt property is greater than the total value of the mortgage and the judgment lien, then the remaining equity in the property is subject to the Uniform Fraudulent Transfer Act and available to satisfy the Farstveet judgment. See Farstveet, 2000 ND 189, ¶¶ 23, 24 (concluding Eileen’s transfer of the nonexempt property was a fraudulent transfer under N.D.C.C. § 13-02.1-05(2)).
[¶ 42] Accordingly, we modify our initial opinion and reverse that part of the trial court’s judgment finding the homestead was abandoned and remand for findings whether there is equity in the nonexempt property. If the trial court concludes there is equity in the non-exempt property, then its finding that Eileen’s transfer of the non-exempt property was fraudulent was not clearly erroneous and it may fashion an appropriate remedy for the Farstveets.
[¶ 43] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, J.
. Although the trial court stated "the subject real estate was appraised at $278,060,” it did not determine how much of that amount constituted the homestead and how much constituted the non-exempt property. Under N.D.C.C. §§ 47-18-06 through 47-18-11, the judgment creditor may request a state district court to appoint appraisers to appraise the homestead, and the court upon notice and hearing may then appoint three disinterested appraisers who report back to the court with their determination as to the value of the homestead.
. If the non-exempt property is insufficient to satisfy the mortgage, then the mortgagor may resort to the homestead property. N.D.C.C. § 47-18-04.