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Asset & Creditor Protection for Your Self-Directed IRA

asset & creditor protection by IRA Financial Group

Asset & Creditor Protection

For many Americans, a retirement account is an extremely valuable asset. As a result, it’s very important to protect your IRA against creditors, as well as people who sued you and won the lawsuit.

You can implement various strategies for asset & creditor protection. These strategies vary based on a few factors, including:

  • The type of retirement account you own (traditional, Roth or 401(k))
  • Your state
  • If you inherited the assets

Your Self-Directed IRA LLC

A Self-Directed IRA LLC allows you to make a wide range of traditional as well as non-traditional investments. With a Self-Directed IRA LLC, you can now invest in real estate, cryptocurrency, notes and much more. These are called “alternative assets.” Although your IRA owns the Limited Liability Company (LLC), you are the manager. Because the IRA is the owner, this provides additional asset & creditor protection to your Self-Directed IRA. A Self-Directed IRA LLC for investments offers you far greater protection.

Because of this extra protection, you should consider growing and investing your retirement funds through a Self-Directed IRA LLC.

Federal Protection for IRAs for Bankruptcy

Like 401(k) qualified plans, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or the “Act”) gave protection to a debtor’s IRA funds in bankruptcy by way of exempting them from the bankruptcy estate. There’s a general exemption found in sec­tion 522 of the Bankruptcy Code. It pro­vides an unlimited exemption for IRAs under section 408 and Roth IRAs under section 408A. There is a section for employer-sponsored IRAs under section 408(k) sim­plified employee pension (SEP IRA). Additionally, there’s sec­tion 408(p) simple retirement account (SIMPLE IRA). There is also pension, profit sharing, or qualified section 401(k) Plan wealth transferred to a rollover IRA.

Traditional and Roth IRAs that the debtor creates and funds are subject to an exemp­tion limitation of $1 million in the aggregate for all such IRAs. It will adjust for inflation and is subject to increase if the bankruptcy judge determines that the “interests of justice so require”. It is understood that a rollover from a SEP or SIMPLE IRA into a rollover IRA receives only $1 million of protection. This is because such a section 408(d)(3) rollover isn’t an allowable rollover under Bankruptcy Code section 522(n).

Protection of IRAs from Creditors Outside of Bankruptcy

In general, ERISA pension plans, such as 401(k) qualified plans, have extensive anti-alienation credi­tor protection. This protection is for both inside and outside of bankrupt­cy. However, these extensive anti-alienation protections do not extend to an IRA. This includes a Self-Directed IRA, arrangement under Code section 408. Therefore, since an individually estab­lished and funded Traditional or Roth IRA is not an ERISA pension plan, IRAs are not preempted un­der ERISA. Thus, for anything short of bankruptcy, state law determines whether IRAs (including Roth IRAs) are shielded from creditors’ claims.

The following table will provide a summary of state protection given to IRAs, including Self-Directed IRAs. This protection is against creditors outside of the bankruptcy context.

StateState StatuteSpecial Statutory ProvisionState Traditional IRA Exemption from CreditorsState Roth IRA Exemption from Creditors
AlabamaAla. Code §19-3B-508YesNo
AlaskaAlaska Stat. §09.38.017The exemption does not apply to amounts contributed within 120 days before the debtor files for bankruptcy.YesYes
ArizonaAriz. Rev. Stat. Ann. § 33-1126CThe exemption does not apply to amounts contributed within 120 days before a debtor files for bankruptcy.YesYes
ArkansasArk. Code Ann. §16-66-220YesYes
CaliforniaCal. Civ. Proc. Code § 704.115Yes – IRAs are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires.No
ColoradoColo. Rev. Stat. §13-54-102YesYes
ConnecticutConn. Gen. Stat. §52-321aYesYes
DelawareDel Code Ann. § 10-4915YesYes
D.C.D.C. Code § 15-501(a)(9) & (10)YesYes
FloridaFla. Stat. Ann. §222.21The debtor’s IRAs are exempt from creditors, but one Florida court has held that inherited IRAs are not exempt from creditors (Robertson v. Deeb, 16 So. 3d 936 (Fla. 2d Aug. 14, 2009).YesYes
GeorgiaGeorgia Code Ann. § 44-13-100(a)(2.1)IRAs are exempt only to the extent necessary for the support of the debtor and any dependent.YesNo
HawaiiHawaii Rev. Stat. § 651-124The exemption does not apply to contributions made to a plan or arrangement within three years before the date a civil action is initiated against the debtor.YesNo
IdahoIdaho Code §§ 11-604A, 55-1011YesNo
IllinoisI.L.C.S. § 5/12-1006YesYes
IndianaInd. Code Ann. § 55-10-2(c)(6)YesNo
IowaIowa Code Ann. § 627.6(8)(e), (f)YesYes
KansasKan. Stat. Ann. § 60-2308YesYes
KentuckyKy. Rev. Stat. Ann. § 427.150(2)(f)The exemption does not apply to any amounts contributed to an individual retirement account if the contribution occurred within 120 days before the debtor filed for bankruptcy. The exemption also does not apply to the right or interest of a person in individual retirement account to the extent that right or interest is subject to a court order for payment of maintenance or child support.YesYes
LouisianaLa. Rev. Stat. Ann. §§ 20:33(1), 13:3881(D)No contribution to an IRA is exempt if made less than one calendar year from the date of filing bankruptcy, whether voluntary or involuntary, or the date rights of seizure are filed against the account. The exemption also does not apply to liabilities for alimony and child support.YesYes
MaineMe. Rev. Stat. Ann. Tit. 14, § 4422(13)(E)Exempt only to the extent reasonably necessary for the support of the debtor and any dependent.YesYes
MarylandMd. Code Ann. Cts. & Jud. Proc. § 11-504(h)(1)YesYes
MassachusettsMass. Gen. L. Ch. 235 § 34A; 236 § 28The exemption does not apply to an order of court concerning divorce, separate maintenance or child support, or an order of court requiring an individual convicted of a crime to satisfy a monetary penalty or to make restitution, or sums deposited in a plan in excess of 7% of the total income of the individual within 5years of the individual’s declaration of bankruptcy or entry of judgment.YesYes
MichiganMich. Comp. Laws Ann. §§ 600.5451(1), 600.6023(1)(k)The exemption does not apply to amounts contributed to an individual retirement account or individual retirement annuity if the contribution occurs within 120 days before the debtor files for bankruptcy. The exemption also does not apply to an order of the domestic relations court.YesYes
MinnesotaMinn. Rev. Stat. Ann. § 550.37(24)Protection limited to $60,000 (adjusts for inflation).YesYes
MississippiMiss. Code Ann. § 85-3-1(e)Applies to solo 401k plansYesYes
MissouriMo. Ann. Stat. § 513.430.1(10)(e) and (f)Exemption limited to extent reasonably necessary for support.YesYes
MontanaMont. Code Ann. §§ 19-2-1004, 25-13-608, 31-2-106YesYes
NebraskaNeb. Rev. Stat. § 25-1563.01For IRAs – Limited to the extent reasonably necessary for support.Individual Retirement Accounts are generally protected from attachment and garnishment to the extent the funds contained therein are reasonably necessary for the support of the debtor or any dependent of the debtor. Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994).YesYes
NevadaNev. Rev. Stat. § 21.090(1)(q)The exemption is limited to $500,000 in present value held in an IRA.YesYes
New HampshireN.H. Code Ann. § 511:2, XIXYesYes
New JerseyN.J. Stat. Ann. § 25:2-1(b)YesYes
New MexicoN.M. Stat. Ann. §§ 42-10-1, 42-10-2YesYes
New YorkN.Y. Civ. Prac. L. and R. § 5205(c)YesYes
North CarolinaN.C. Gen. Stat. § 1C-1601(a)(9)YesYes
North DakotaN.D. Cent. Code § 28-22-03.1(3)Retirement funds that have been in effect for at least one year, to the extent those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. The value of those assets exempted may not exceed one hundred thousand dollars for any one account or two hundred thousand dollars in aggregate for all account.YesYes
OhioOhio Rev. Code Ann. § 2329.66(A)(10)(b) and (c)SEP and SIMPLE IRAs are not protected.YesYes
Oklahoma31 Okla. St. Ann. § 1(A)(20)YesYes
Oregon42 Pa. C.S. §§ 8124(b)(1)(vii), (viii), (ix)YesYes
Pennsylvania42 Pa. C.S. §§ 8124(b)(1)(vii), (viii), (ix)100%, except for amounts (1) contributed within 1 year (not including rollovers), (2) contributed in excess of $15,000 in a one-year period, or (3) deemed to be fraudulent conveyances.YesYes
Rhode IslandR.I. Gen. Laws § 9-26-4(11), (12)YesYes
South CarolinaS.C. Code Ann. § 15-41-30(12)IRA exemption limited to the extent reasonably necessary for support. For Solo 401(k) Plans, not limited to the extent reasonable necessary for support.YesYes
South DakotaS.D. Cod. Laws §§ 43-45-16

S.D. Cod. Laws §§ 43-45- 17

Exempts “certain retirement benefits” up to $1,000,000.YesYes
TennesseeTenn. Code Ann. § 26-2-105Distributions 100% exempt to the extent they are on account of age, death, or length of service and debtor has no right or option to receive other than periodic payments at or after age 58.YesYes
TexasTex. Prop. Code § 42.0021YesYes
UtahUtah Code Ann. § 78-23-5(1)(a)(xiv)The exemption does not apply to amounts contributed or benefits accrued by or on behalf of a debtor within one year before the debtor files for bankruptcy.YesYes
Vermont12 Vt. Stat. Ann. § 2740(16)YesYes
VirginiaVa. Code Ann. § 34-34Limited to interest in one or more plans sufficient to produce annual benefit of up to $25,000 (pursuant to actuarial table in statute).YesYes
WashingtonWash. Rev. Code § 6.15.020YesYes
West VirginiaW. Va. Code § 38-10-4(j)(5) Principal 100% protected. Exemption for distributions limited to the extent reasonably necessary for support.YesNo
WisconsinWisc. Stat. Ann. § 815.18(3)YesYes
WyomingWy. Stat. Ann § 1-20-110(a)(i), (ii). No statutory exemption for IRAs. – only mentions retirement plansNo statutory exemption for IRAs. – only mentions retirement plansNoNo

 

IRA Asset Protection Planning

The different federal and state creditor protection afforded to 401(k) qualified plans and IRA, including Self-Directed IRAs, inside or outside the bankruptcy context presents a number of important asset protection planning opportunities.

For example, if you have left an employer where you had a qualified plan, rolling over assets from a qualified plan into an IRA may have asset protection implications. In other words, if you live in or plan to move to a state where IRAs are not protected from creditors (or have an excess of $1 million in plan assets and are contemplating bankruptcy) you’re likely better off leaving the assets in the company qualified plan.

If you plan to leave at least some of your IRA to your family, other than your spouse, the assets may not be protected from your beneficiaries’ creditors. This depends on where the beneficiaries live. IRA assets left to a spouse would likely receive creditor protection if the IRA is re-titled in the name of the spouse. However, you will likely be able to protect your IRA assets that you plan on leaving to your family, other than your spouse, by leaving an IRA to a trust. To do that, you must name the trust on the IRA custodian Designation of Beneficiary Form on file.

The IRA Asset & Creditor Protection Solution

By having and maintaining an IRA, you will have $1 million of asset protection from creditors in a bankruptcy setting. However, the determination of whether your IRA receives protection from creditors outside of bankruptcy will largely depend on state law. As you see above, most states will afford IRAs full protection from creditors outside of the bankruptcy context.

Why Work With the IRA Financial Group?

The IRA Financial Group was founded by a group of top law firm tax and ERISA lawyers who have worked at some of the largest law firms in the United States. Over the years, our team has helped thousands of clients establish IRS compliant Self-Directed IRA LLCs for asset and creditor protection. With our experience at some of the largest law firms in the country, our retirement tax professionals’ tax and IRA knowledge in this area is unmatched.

To learn more about using a “Checkbook Control” Self-Directed IRA LLC alternative investments without tax, please contact one of our Self-Directed IRA Experts at 800-472-0646 for more information.

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