Exempt Property – Assets That Are Protected (Part 1 of 3)
Asset protection. Providing the honest debtor with a “fresh Start” is the core principle of bankruptcy law. In order to make the “fresh Start” a reality, the law is very generous about the assets that a person in bankruptcy is allowed to keep. The categories of protected property are called “exemptions”, because such property is “exempt” from being taken to pay the creditors. However, the available exemptions do not necessarily cover everything that the debtor might own. Assets that are not exempt may be taken by the trustee.
Transfer of assets prior to filing. People will sometimes transfer assets prior to filing bankruptcy, because they think that this is how to protect it from being taken away. This is a good example of a costly legal mistake that people often make, which an expert would easily have avoided. Do not attempt to omit such assets from the bankruptcy schedules. Do not hide, conceal, transfer, or falsely encumber non exempt assets. Doing so carries the risk of being prosecuted for committing bankruptcy crimes, it is likely to result in the denial of a bankruptcy discharge, and the trustee can still recover such property, or its value, from whoever it was given to. If such property is recovered by a trustee, the debtor can not then claim it as exempt, even if it could have been properly exempted before such transfer. Surrendering non exempt assets is a price the debtor pays for the privilege of seeking relief under Chapter 7. If the price is too steep, (you don’t want to risk losing non exempt assets), then don’t file or else consider filing under Chapter 13. One of the requirements for gaining confirmation of a Chapter 13 Plan is that the Plan pays creditors the same value that they would have received from non exempt assets if the case was administered under Chapter 7.
Caveat: Consult with a bankruptcy specialist before you file to determine if you have any assets that are not exempt. Do not engage in schemes to hide, transfer or conceal assets. Inexperienced people can’t help but trip over the maze of new rules and regulations.