Inherited IRAs- Are They Safe From Creditors?

by Natasha Meruelo, Esq.

In the last few years, the issue of whether creditors can reach retirement funds inherited by individuals who are in bankruptcy proceedings or contemplating bankruptcy, has become a hot topic. In many courts around the country, this has been labeled a "question of first impression", meaning, it is the first time this question has come before such courts.

It seems that many courts are now concluding that these assets are exempt. Of course, each case is different and depends on the circumstances surrounding the inherited retirement funds, however, this trend is positive news for debtors.

In one of the most recent decisions on the subject, Chilton v. Moser (In re Chilton), the Fifth Circuit found on appeal that an inherited IRA with $170,000 was exempt due to the fact that it was rendered exempt from taxation under a specific IRC provision following its transfer from the deceased to the debtors and the fact that this provision was specifically named in Section 522(d)(12), the federal exemption for certain retirement funds. 

Similarly, in a Ninth Circuit United States Bankruptcy Appellate Panel case, Mullen v. Hamlin (In re Hamlin), the court considered whether a debtor could claim an exemption under Section 522(b)(3)(C) in an IRA the debtor inherited from her grandmother, and concluded that a debtor can exempt funds in an IRA inherited from a non-spouse. It should be noted that not all courts agree with the analysis in Chilton and Hamlin, however, these cases are positive news for persons considering bankruptcy.

If you are contemplating filing for bankruptcy and are concerned about an inherited IRA or other retirement funds you have received from a deceased individual, it would serve you well to speak with a qualified bankruptcy attorney about your case.

Questions or interested in a consultation about your case? Email me at meruelolaw@gmail.com or call me at (914) 517-7565.

Non-Attorney Bankruptcy Petition Preparers- Why Take The Risk?

By Natasha Meruelo, Esq.

Have you ever considered hiring a bankruptcy "petition preparer" instead of a bankruptcy attorney? Bankruptcy petition preparation services abound, however, there is a vast difference between hiring an attorney and using one of these services and the difference could jeopardize your chances of getting a discharge of your debts.

Bankruptcy is not a matter that should be taken lightly and it is also not a matter of filling out a few forms. First and foremost, just because you have debt and are struggling to pay your bills, does not mean that bankruptcy is appropriate for you. Actions you may have taken in your financial life or assets you may have may present significant issues that would make a bankruptcy filing inappropriate in your situation or really merit the careful and thought out counsel of a bankruptcy attorney. There is no way you can get the kind of knowledge and information you need from a bankruptcy petition preparer that will allow you to feel confident about the direction of your case that you can get from working with an attorney. Furthermore, a petition preparer will not be by your side as you go through the bankruptcy process, unlike your attorney, who represents you until your case closes.

While bankruptcy relief is available to thousands of individuals, your case may require special planning and analysis that a bankruptcy petition preparer is unlikely to be able to provide. In fact, bankruptcy petition preparers cannot provide you with the same level of service and counseling that bankruptcy attorneys can because of the exact fact that the are not attorneys and cannot give you legal advice. This means that they cannot tell you what types of property you can keep versus what assets you could be putting in jeopardy by filing for bankruptcy, or how to protect property by applying the correct exemptions. All of this constitutes legal advice, which a petition preparer is neither qualified nor permitted to do. All a petition preparer can do is literally fill out a form for you. So, ask yourself: why should you pay for a service that you could do by yourself when you could instead speak with an attorney who can advise you as to what issues may be present in your bankruptcy case, what type of bankruptcy is best for your situation and who will also be a source of guidance throughout your case?

Some things are just not worth the risk. This is a lesson all too often learned by individuals whose cases are dismissed or worse, who end up losing assets as a result of incorrect advice from a petition preparer or simply a poorly prepared set of papers. That was the unfortunate lesson learned by the Debtors in In Re Kuch,  2012 Bankr. LEXIS 1025 (Bankr. D. Colo. March 12, 2012). Although the bankruptcy petition preparer in this case was ultimately sanctioned by the court, the debtors had to go through the harrowing experience of having their case dismissed and presumably having to start over in their quest for bankruptcy relief.

Questions or interested in a consultation about your case? Email me at meruelolaw@gmail.com or call me at (914) 517-7565.