Asset Protection

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Asset Protection During Bankruptcy

Typically, a person filing a Chapter 13 bankruptcy will get to retain ownership of real and personal property subject to the rights of secured creditors having mortgages and other liens on the assets. Filers of Chapter 7 bankruptcies must relinquish the assets they own to the bankruptcy trustee who is authorized to sell them to raise funds to pay creditors. The trusted attorneys at The Law Offices of John W. Lee, P.C., can help individuals filing for bankruptcy with protecting assets through the exemptions granted under Virginia law.

Federal Bankruptcy Exemptions

The U.S. Bankruptcy Code allows debtors to exempt and retain certain assets. Included among the federal exemptions are the following:

  • A motor vehicle valued at up to $3,775
  • Jewelry valued at no more than $1,600
  • Household goods, such as clothing, furniture, musical instruments, having an individual value not exceeding $600 and an aggregate value of no more than $12,625
  • Tools used in an occupation, including books, valued at no more than $2,375
  • A life insurance policy with a cash or loan value that does not exceed $12,625
  • Equity in a principal residence not exceeding $23,675
  • Most tax-exempt retirement accounts subject to caps on certain types of accounts

The exemption amounts are doubled when married couples file jointly for bankruptcy. The amount of each of the exemptions allowed under federal law undergoes adjustment every three years, so they are subject to change.

Virginia Opts Out of the Federal Bankruptcy Exemptions

States have the option of accepting the federal exemptions, giving people the option to choose the federal exemptions or exemptions available under state law, or opting out of the federal exemptions and mandating the use of state exemptions in bankruptcy proceedings filed within their jurisdiction. Virginia elected to opt out of the federal exemptions and created its own rules for exempt property in a bankruptcy.

Debtors filing for bankruptcy within the commonwealth can protect property per the laws of Virginia rather than exemptions established under federal law. Under the Virginia exemption laws, a debtor is assisted in asset protection, such as:

  • All money on deposit in a medical savings account
  • All benefits received from a fraternal benefit society
  • Settlements or awards received for personal injury and wrongful death claims
  • Burial sites and up to $5,000 paid under a pre-arranged funeral agreement
  • Up to $6,000 in equity the debtor has in a motor vehicle or up to $10,000 in equity if the vehicle is used for work or to get to and from school
  • Up to $5,000 in home furnishings
  • Up to $5,000 in family heirlooms and family portraits
  • Firearms with a value not exceeding $3,000
  • Clothing valued at up to $1,000
  • The family pet
  • A family bible
  • Engagement and wedding rings
  • Child and spousal support arrears owing to the debtor
  • All unemployment compensation benefits
  • Tools and implements valued at no more than $10,000 and used in a person’s trade or occupation

In addition to the above referenced list of exemptions, Virginia debtors may also keep the following assets up to high values: Cash value in life insurance policies and annuities, 401K plans and other ERISA qualified retirements, Individual retirement accounts, spousal support and child support payments.

Disabled military veterans are entitled to claim an exemption for cash or personal property valued at up to $10,000. Debtors who are employed may exempt the greater of either 75 percent of disposable earnings or 40 times the minimum hourly wage as established by the federal government.

Protecting Assets in a Bankruptcy in Virginia Includes a Homestead

The rules pertaining to protecting the equity built up in a home owned by a person filing for bankruptcy can be complex. The basic homestead exemption allows an individual to protect up to $5,000 in equity he might have in a home, condominium or mobile home. Debtors are entitled to an additional $500 exemption for each of their dependents. The exemption increases to $10,000 for veterans with at least a 40 percent disability and debtors who are 65 years of age or older.

A debtor must file a homestead deed with the Circuit Court of the county in which the property on which the exemption is claimed is located. This must be done within 5 days of the 341 hearing.  The Homestead exemption amount ($5,000.00 – $10,000.00) is a cumulative lifetime exemption and once used may not be used in a subsequent bankruptcy once fully used up. For example, if you use $3,500.00 of your $5,000.00 life-time exemption, then in a subsequent bankruptcy you could only exempt (protect) $1,500.00 worth of property.

When married couples file jointly for bankruptcy, the basic Homestead exemption is doubled to $10,000, or $5,000 per filer.

In addition to the homestead exemption, married couples that hold real property “tenants-by-the-entirety” may exempt or protect all equity in the equity in their marital home if they have no joint unsecured debts. The tenants-by-the-entirety exemption may be claimed by either or both of the spouses that file bankruptcy, protecting all equity, so long as they qualify for the exemption.

Virginia has what is referred to as a “wildcard exemption” for personal property. This exemption, which can be found in Section 34-13 of the Code of Virginia, allows a homeowner to apply any unused portion of the homestead exemption toward protecting assets that might not already be exempt from liquidation in a bankruptcy.

Superior Legal Advice and Guidance Needed When Filing for Bankruptcy

Individuals in need of a fresh start through Chapter 7 bankruptcy do not have to lose all the assets they own. Virginia bankruptcy exemptions can provide protection for certain assets, but it is essential for a debtor to obtain knowledgeable advice from a Hampton bankruptcy attorney who understands the laws and how to apply them in a way that is most favorable to the debtor. The attorneys at The Law Offices of John W. Lee, P.C., have more than 70 years of combined experience to put to work on behalf of their clients. Call them today at (757) 896-0868 to schedule an appointment.