The creditorsâ€™ have no rights to the assets exempted from the bankruptcy estate. Certain properties might be exempted from credit collection under other laws, even though they are part of the estate.
Assets included in the bankruptcy estate: Apart from tangible assets, a debtorsâ€™ Estate also includes the following-
Rights to file a suit.
Tax refunds from pre-petition years and intellectual property rights
Rights to inheritances are received within six months after the bankruptcy is filed.
Tax attributes such as loss carryforwards.
Any property transferred by the debtor improperly or taken by the creditor shortly before filing the case, the trustee under the Bankruptcy Code has the right to recover the same.
Assets excluded from the bankruptcy estate:
Trusts and ERISA pensions are exempted from the estate under the Bankruptcy Code. Children’s education fund is also excluded from the estate; most courts also exclude social security from the estate.
Assets and Bankruptcy Estate
When a person files for bankruptcy, almost all his/her assets become part of the bankruptcy estate; what happens to those properties depends on the bankruptcy chapter filed.
Chapter 7: The bankruptcy court sells all the property included in the estate and distributes the proceeds to the creditors. The assets are exempted under the bankruptcy code, and any asset or property acquired after the filing date is not included in the estate. A few common types of assets included in the bankruptcy estate are the following:
Property Owned but not in Possession: Any property that a person owns but is not in their possession will be included in the Estateâ€”for example, a security deposit with a landlord, loaning a car to a friend, etc.
Property Entitled to Receive: If a debtor has the right to receive any asset but has not received it yet, still, it will be included in the Estate, for example, tax refunds, account receivables, unpaid income, or commission earned before filing the case.
Assets Acquired after Filing: Any asset inherited through a marital settlement agreement, divorce decree, life insurance proceeds, or death benefits acquired within six months of filing will be part of the bankruptcy estate.
Revenues and Profits Earned: If the property included in the bankruptcy estate generates revenue or profits, like rental income, such revenues will be included in the bankruptcy estate.
Fraudulent Transfers: If a debtor transfers or gives away property before bankruptcy filing and proves to be fraudulently transferred, the trustee can cancel the transfer and use the sale to proceed to repay the creditors.
Preferential Creditors Payment: All the creditors are to be treated equally; if a debtor pays to any creditor shortly before filing bankruptcy, a trustee can take that money back and distribute the fund among all creditors.
Community Property: If living in community property, whether filing bankruptcy individually or jointly with a spouse, the community property will be treated as part of the bankruptcy estate. However, the spouseâ€™s separate property will not be considered part of the estate if the filing is done individually.
Common-Law Property State: If bankruptcy is filed jointly with a spouse in a common-law state, both spouseâ€™s and debtorâ€™s separate and joint properties will be included in the bankruptcy estate. If an individual file alone, only their separate property and their share of the joint property will be part of the bankruptcy estate.
Increase in Value of the Property: If a property or asset that is a part of bankruptcy estate increases in value, such appropriation will also be the Estate’s property.
Chapter 13: Under this chapter, the bankruptcy estate includes all the property described above, but unlike Chapter 7 bankruptcy, any asset acquired after filing but before the dismissal, conversion, or closure under chapter 13 will be considered as the bankruptcy estate.
Also, a debtor can keep the non-exempted property and therefore, they need to pay unsecured creditors, like credit card bills, medical bills, etc., and the amount is equal to the value of non-exempt property.
Asset Leaving the Estate
When an asset is claimed for exemption, and the exemption is granted, the property leaves the estate.
If a trustee abandons a property, it loses its character of being an asset of the estate. A property is abandoned if the value is minimal or less than the liquidation cost or when the tax burden on selling the property exceeds the proceedings from the sale.
Abandonment of property takes place either at the time of motion during the case or after the case. Any property that a trustee does not administer for sale listed in the schedule is deemed abandoned at closing the case.
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