I have this judgment against me for $26k. It was over a real estate transaction. I understand judgment creditors cannot touch my retirement funds, but what about at time of my death? If I leave the funds to my spouse ( we have a trust) would it be vulnerable then? Are retirement accounts ever vulnerable to a judgment?
Welcome. This site allows for a general response that will help you with your legal issue. If necessary, for specific advice contact a local attorney. I am happy to help. If you need clarification, hit reply and ask a follow up question. Retirement accounts usually pass outside of probate - meaning that if the beneficiary is a spouse, then the retirement assets would go directly to the spouse or the spouse's retirement account or remain in the retirement account for the benefit of the spouse. A creditor would have claims against probate assets. As long as the Estate is not a beneficiary of the retirement accounts, then the moneys would not pass through probate. So, in sum, if someone dies, a creditor can make a claim against the estate for probate assets and as long as retirement monies do not pass through the estate, they should be safe, especially if the monies roll over into another retirement account. That is not to say that a creditor could not attempt to get the monies from a beneficiary. One caveat would be that there was a judgment outstanding and to avoid the judgment the debtor attempted to transfer property without adequate consideration, which could be deemed a fraudulent transfer. So even though the likelihood would be low since the monies would be nonprobate assets, there could be a chance the creditor will try to go after the beneficiary if the monies are not rolled over to another retirement account. If you need further clarification, hit reply and let me know. Otherwise, please provide a positive rating so I receive credit for the services I am providing you. Thank you.
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Concerning the judgment I have mentioned, I am feeling fairly judgment safe. I am retired so I get social security and have my 401k nest egg. We own our home, which in Kansas is safe from creditors. My wife is still employed, but has nothing to do with this judgment.My wife and I own a rental condo together, which might sell for $115k and we owe 76k on it. So 50% of the equity, I guess, is vulnerable, less first mortgage and sales cost. Would they find it worth it to put a lien on it? I doubt we will ever sell it. We came by this condo by taking it over from our son, who owed us $16k. We forgave the debt and took over the property, then turned it into a rental.Something of an issue with the condo: My ex wife died, and before her death made me trustee to her estate, which the condo was a part of that trust. My son was beneficiary of the condo.Due to my son's age I kept the condo in the trust. The attorney, who wrote the trust for us, told me I should not have taken the condo over, that I should have sold it, that what I did was improper. My son, who inherited the condo in the trust couldn't care less about the transaction. When I made the deal with my son he was 29 years old.Since, I guess, I did something improper in terms of the trust, by taking over the condo, I was thinking of having my son pay us back some of or all of the debt he owed us, then adding him to the title, which he would be happy to do. Would doing that pass the smell taste? By adding my son to the title, it would dilute my part of the equity, making going after the property less desirable to this judgment creditor,What would a judgment creditor want to do here? I have offered them $7k to settle, but no response yet. BTW, they are in New York and I am in Kansas.Thank you for your follow up. I appreciate itdws
Hello Again!Your most recent question seems to have two issues that you present: (1) Whether a judgment creditor would find it worth it to put a lien on your condo, especially if you put your son's name on it along with your name; and (2) Can I put my son's name on the condo along with my to resolve any outstanding issues with the trust.Obviously, I cannot speak as to whether a creditor would find it worth it to put a lien on the house. However, from the facts presented, a creditor with the option to either put a lien on a condo or take a reasonable settlement offer of cash, would usually take the cash. Also, a creditor who is out of state has to take many steps to put a lien on real property in another state. So, generally, if there is a reasonable settlement offer in cash, the creditor usually takes it. Please note that settlements of outstanding liens usually range between 1/3rd and 2/3rds of the original judgment lien. The negotiation takes place between on party offering 1/3rd of the lien and the other party attempting to get 2/3rd of the lien.With regard to the trust and the facts you present, it is my understanding that the condo was held in trust for your son. When your ex-wife died, the beneficiary of the trust, depending on the trust terms, would receive title of the trust. However, you kept the condo in the trusts name. It is unclear whether you still have the condo in the trusts name or transferred the trust into your name. If the transfer occurred improperly, the best action to take in these situations is rectify the error and put it back to where it has to be. It is better to rectify situations asap than to wait. Waiting makes things worse. In terms of the debt of your son to you, parties can always negotiate payment of debt, including whether or not to transfer part of real property to satisfy the debt.
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Thank you, Damien
Hi: As before, you can always ask me legal questions either relating to the previous questions or a question involving a separate legal issue.Take care,Damien Bosco
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