You're concerned that you could lose property in bankruptcy—and you're right. But you can eliminate surprises with careful planning. Start by learning how exemption laws protect assets in bankruptcy. Here are the basics:
You'll find more details below, and once you've learned how to protect property in bankruptcy using exemptions, check out the resources provided at the end of the article. You'll find links to applicable bankruptcy forms and additional articles we think you'll enjoy.
No one loses everything they own in bankruptcy. You'll likely be able to keep some equity in a home, furnishings, an inexpensive car, and your retirement account. However, the specifics vary between states.
Every state has a set of exemption laws, but some states allow you to choose between your state exemptions and federal bankruptcy exemptions. And California is unique because it has two sets of state exemptions from which a debtor can choose.
If you have a choice of exemption systems, you'll select the one that best protects your property. You can't mix and match between two exemption schemes, but if you choose the state exemptions, you can also use the federal nonbankruptcy exemptions.
Exemptions work differently in Chapters 7 and 13. In Chapter 7 bankruptcy, you lose property not covered by an exemption. The bankruptcy trustee responsible for managing your case will sell the property for the benefit of your creditors.
In Chapter 13 bankruptcy, you can keep all of your property; however, that luxury comes at a price—literally. You'll pay your creditors the value of any property not covered by an exemption in your Chapter 13 repayment plan.
For example, say you own a car outright worth $3,000, and your state has a vehicle exemption of up to $5,000. Here's what would happen in each chapter.
Keep in mind that these examples don't take into account a vehicle loan. For more information, read How to File Bankruptcy Without Losing a Car.
To determine if all of your property is safe, start by doing an inventory of your property. Next, use online sites like Realtor.com, Zillow.com, KBB.com, Nada.com, and eBay for replacement value estimates. You can even use Craigslist or Facebook Marketplace, but strive for accuracy and make copies of comparable listings. The trustee might require a professional appraisal for unique items.
Finally, select the exemption system that covers the property you'd most like to keep if you have a choice between two (and if you moved to a new state in the last two years, check the timing rules below).
If your state isn't listed, you'll find more state exemptions here.
Some states have significantly more generous bankruptcy exemptions than others. But you can't move there and immediately use them. To prevent abuse, you must live in the state for at least two years—otherwise, you'll use the previous state's exemptions. Here's how it works.
If you've made your permanent home (your "domicile") in your current state for at least two years, you can use the state's exemptions (or the federal exemptions if allowed).
The rules get more complicated if your domicile hasn't been in the same state for two years. So prepare yourself—this is going to sound strange. But we'll explain it two ways, so you'll know you didn't read it wrong. Here's the first way: You'll choose the state you lived in the longest during the 180 days immediately before the two years before filing.
Did you get that? Here's the second explanation, just in case. Count back two-and-a-half years. Then ask yourself where you lived the longest during the first six months of that two-and-a-half-year period.
Still confusing? Let's try an example. Suppose you planned to file on January 1, 2022. Your two-and-a-half-year period would start July 1, 2019, and you'd qualify to use the exemptions of whichever state you resided in the most from July 1, 2019, through December 31, 2019. You wouldn't have to file your case there, but you'd use that state's exemptions. Hopefully, that helps!
The homestead exemption protects your ownership interest in your home. You'll need to read your state's homestead statute to determine the specifics, such as the amount of equity and acreage covered, whether the exemption protects a manufactured home, and if you need to file a homestead exemption with the county clerk. But in all states, the property must be your residence. Also, you'll need to comply with a federal timing law—here's the rule:
You must live in the home for over 40 months before filing for bankruptcy. Otherwise, your homestead exemption is capped at $189,050 if you file on or after April 1, 2022 (the amount changes every three years). This cap won't apply if you bought your home with home sales proceeds from that state.
Find out more in Chapter 7 Homestead Exemption in Bankruptcy.
Bankruptcy is essentially a qualification process. The laws provide instructions for completing a 50- to 60-page bankruptcy petition, and because the rules apply to every case, you can't skip a step. We want to help.
Below is the bankruptcy form for this topic and other resources we think you'll enjoy. For more easy-to-understand articles, go to TheBankruptcySite.
More Bankruptcy Information
Bankruptcy Forms and Document Checklist
More You Might Like
We wholeheartedly encourage research and learning, but online articles can't address all bankruptcy issues or the facts of your case. The best way to protect your assets in bankruptcy is by hiring a local bankruptcy lawyer.