What Happens to Your Assets in Bankruptcy


Most bankruptcy cases are filed voluntarily by debtors. But there are a few cases where the creditors file a bankruptcy petition against the debtors. This is called as involuntary bankruptcy.

A person can be made bankrupt through the Federal Court if a creditor files a creditor’s petition. To do this, a creditor has to obtain a judgment against the debtor and serve a bankruptcy notice on that person. The debtor has to pay for the debt before bankruptcy notice expires, otherwise the creditor may file a creditor’s petition to make the debtor bankrupt.

When a debtor enters an involuntary bankruptcy, the control of all non-exempted assets will be transferred to the bankruptcy trustee. If the debtor acquires or receives a property after the bankruptcy case is filed it will not become part of the bankruptcy estate unless the debtor was eligible to receive it at the time of filing.

Although the majority of possessions acquired after a filing are not included in the bankruptcy estate, there are some exceptions. If the debtor receives a death benefit, inherits a property, or becomes entitled to a certain property as a result of divorce proceeding, the debtor has let the trustee know about it if the entitlement was granted within 180 days after a bankruptcy and even after the bankruptcy discharge.

Marital property will be included in the bankruptcy estate depending on the state laws and type of bankruptcy case filed. In a joint filing, all marital property is included in the bankruptcy estate. If only one spouse is filing, then the fate of a marital property would depend on state laws that govern marital property ownership.

In a community property state, all property obtained during the marriage is treated as marital property. But a property received as a gift or inheritance of one spouse, bought or acquired before the marriage, or acquired following a divorce is excluded in the bankruptcy estate. Since a marital property is owned by both spouses, if one spouse files for bankruptcy their property becomes part of the bankruptcy estate.

In a common law property state, the spouses can own a property either jointly or individually. If a spouse files for bankruptcy, all property of the filing spouse and one half of the property owned jointly becomes part of the bankruptcy estate.

In a tenancy by the entirety state, marital property is held by the matrimony itself. None of the spouses can alienate or encumber the property without the permission of the other. For that reason in tenancy by the entirety states, marital property is excluded from the bankruptcy estate.

There are certain assets a bankruptcy trustee may not use to repay creditors. This consists of assets acquired 180 days after the date of filing, and any property that carries a lien. In addition, pension and retirement plan funds are protected in bankruptcy. The exception to this rule is retirement benefits that are paid to you as income are not protected from creditors.


Basic Steps of Filing a Chapter 7 Bankruptcy

1. Make a list of your debts and analyze it. Debts like student loan and domestic support obligations are not dischargeable in Chapter 7 bankruptcy. If you have a secured debt, the creditor can take the property in order to get the payment of your loan.

2. Find out what assets you can keep. Every state has its own bankruptcy exemption laws. They determine which property you can protect if you file for Chapter 7 bankruptcy.

3. Make sure you are qualified to file for Chapter 7 bankruptcy. Not everyone is eligible to file for Chapter 7 bankruptcy. For instance, if your net income is enough to finance a Chapter 13 repayment plan, you will not be able to file for Chapter 7 bankruptcy. The means test determines if you are eligible to file. Your average income within the past six months should be lower than the average income for a family of your size in your state.

4. Contemplate on what you want to do with your secured debts. When you file for bankruptcy, you will have to decide whether you wish to redeem the secured property, reaffirm the debt or surrender the property. You may have other choices depending on your state residence.

5. Prepare your bankruptcy petition properly. You need to fill out a few dozen pages of the bankruptcy forms. This is where you make a statement of all of your income, expenses, assets and debts. You also have to make a list of all your creditors, take note of the debts being disputed, claim for exemptions, and choose what happens to your secured debts.

6. File your bankruptcy petition to officially commence your case. You can file all the paperwork at once, but if you can’t, you can submit the two-page form first and then submit the rest within 15 days.

7. Attend the creditors meeting. Usually, you only need to show up at the court once to meet with the bankruptcy trustee and your creditors if they you come. At the meeting, your case will be reviewed and you will answer any questions regarding the information in your forms.

8. Address any objection to the bankruptcy discharge. Most debts are wiped out at the end of the Chapter 7 bankruptcy. However, the bankruptcy trustee or creditors can challenge your debt discharge or your entire bankruptcy case. You have to settle all the objections before the bankruptcy case is closed.

9. Settle your secured debts. Upon filing for bankruptcy, you filled up a form where you wrote how you will take care of your secured debts. You must act on these things before you exit bankruptcy.

10. Receive your bankruptcy discharge. This is the absolute goal. After completing bankruptcy, the court will issue an order to officially discharge your debts. This will relieve you from all the legal obligations to pay the discharged debts and the creditors will have no right to demand payments from you.