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Bankruptcy and 401K Questions

What happens to someone’s 401K funds when they file for a bankruptcy? How does bankruptcy affect an individual’s 401K? Will an individual get his 401K funds if his/her employer files for bankruptcy? These are some of the bankruptcy and 401K related questions that individuals may have when either they or someone they know is filing for bankruptcy. Not getting proper information regarding 401K and bankruptcy can be frustrating and lead to many unanswered questions. Given below are common questions about bankruptcy and 401K that have been answered by Experts.

How would a Bankruptcy Petition affect an Individual’s 401K?

As per the Federal Bankruptcy Law, an amount of up to $1 million from an individual’s 401K may be exempt from bankruptcy. However, an individual could face problems with the bankruptcy court if he/she puts a considerable amount of his/her assets in a 401K to make them exempt in the bankruptcy petition. If the individual does not move most of his/her assets into the 401K within 6-12 months prior to filing for bankruptcy, his/her 401K would in most cases, be exempt from the bankruptcy filing.

Can an Individual Withdraw from a 401K when he/she has filed for a Chapter 13 Bankruptcy?

An individual may be able to withdraw from his/her 401K if he/she has filed for Chapter 13 Bankruptcy if the 401K is fully exempted from the bankruptcy and the individual is not borrowing any money.

Should an Individual give his/her 401K Information when Filing for Bankruptcy?

An individual may include his 401K information on Schedule B of the bankruptcy petition and also on Schedule C of the petition.

Can an Individual take a Loan on his/her 401K when he/she files for Bankruptcy?

An individual may not take a loan on his/her 401K if he/she files for Chapter 13 Bankruptcy. If he/she has to take a loan, then he/she may need the approval of the court to do so. In the case of Chapter 7 Bankruptcy, the bankruptcy case would be only for 90 days and the individual would still need the court’s approval to take a loan on the 401K.

Can an Individual, Cash Out his/her 401K in Chapter 13 Bankruptcy?

An individual may be able to cash out his/her 401K in a chapter 13 bankruptcy. However, the money that the individual gets from the 401K will be used by the bankruptcy trustee to repay all the individual’s creditors.

Can an Individual Avoid Repaying a Loan on a 401K in a Chapter 7 Bankruptcy?

401K loans may not be considered as debts in a Chapter 7 Bankruptcy. Hence, an individual cannot avoid repaying an unpaid 401K loan if he/she files for a Chapter 7 Bankruptcy. He/she may have to repay the unpaid 401K loan.

Can an Individual make Contributions to his/her 401K Plan after he/she files for a Chapter 13 Bankruptcy?

An individual may not be allowed to make any contributions to his/her 401K plan after he/she files for a Chapter 13 Bankruptcy.

Can an Individual Access his/her 401K Fund if his/her Employer is Filing for a Bankruptcy?

An individual may be able to access his/her 401K fund if his/her employer files for bankruptcy. When a company files for a bankruptcy, all of its assets become a part of the bankruptcy estate. If the individual wants to access his/her 401K funds, he/she may file a motion of relief. The bankruptcy trustee can grant it and give the individual access to the funds. The individual may file the motion either by himself/herself or hire a bankruptcy attorney to do so.

Filing for bankruptcy often is not an easy time for individuals. A lot of aspects in the financial area may need to be taken care of while filing for bankruptcy. There could be a lot of uncertainty about which assets of an individual may get affected and what assets may be safe in a bankruptcy filing. Knowing how bankruptcy can affect one’s retirement plans and 401K can give a little bit of relief to individuals who need to file for bankruptcy. If you have questions related to your 401k and bankruptcy, it is always best to ask an Expert.

Ask a Bankruptcy Lawyer

FiveStarLaw
FiveStarLaw, Attorney
Category: General
Satisfied Customers: 3311
Experience:  Bankruptcy Lawyer. Experienced.
9968427
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Recent 401K Questions

  • So I had a Chap 7 discharge in Jan 2010 ( filed Sept 2010) Shortly

    So I had a Chap 7 discharge in Jan 2010 ( filed Sept 2010)
    Shortly thereafter my wife get very ill and passed away.
    Now almost 5 years later I find myself with a small 401K (7500)
    and minimal income....In Jan Iwill be able to collect my Soc Sec
    survivor benefit of about 18K per year.
    I barely manage to pay my bills , I have 2 car payments ( one for myself and one for
    my daughter), about 15K of credit card debt ,and have been dipping into y diminishing
    IRA to cover monthly expenses ( about 2500 per month). I also owe about 25K in taxes
    My income varies as I sell insurance (commission only)and drive part time for UBER.
    Once my SSec benefit kics in I should be able to bring home about 3K per month.
    I know I cannot file a Chap 7 again but would a chapter 13 give me any relief
  • If a debtor who is filing a chapter 7 BK and is in the process

    If a debtor who is filing a chapter 7 BK and is in the process of going through a divorce and through the divorce settlement is entitled to a portion of her husbands 401K and those funds be protected in the BK? Can she roll the funds into an IRA? The state she is filing in is Michigan and the amount of the funds is approximately $4,000
  • I ended up paying 13,000 dollars to cancel a debt of 30,000.

    I ended up paying 13,000 dollars to cancel a debt of 30,000. I am expecting to get a 1099-c. So does that mean I am going to have to report the difference of 17,000? I don't have any assets. My wife has a 401k but she is not in any way involved with my defaulted loan, do I have to claim that as an asset. We own a vehicle, when it was financed, I cosigned for it, but my wife uses it. Do I have to list the car as my personal asset?
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