Preserve Your Assets for Your Beneficiaries

Preserve Your Assets for Your Beneficiaries
Anyone who has gone through the gauntlet of law school classes or who has had a lot of dealings with attorneys, knows that the most classic and common answer to what would appear to be a straight forward legal question is: it depends. This response is true when it comes to a discussion as to whether or not life insurance proceeds and 401-K Retirement Plans are exempt from attachment by your creditors.

First, let’s take a look at life insurance proceeds. Under Fla. Stat. §222.13, if a person is residing in the state of Florida at the time of their death, the proceeds of the policy are deemed exclusively for the benefit of the beneficiaries of the insurance policy as designated in the policy and the insurance proceeds are exempt “from the claims of creditors of the insured.” Therefore, if someone owes $5,000 to credit card companies at the time of their death, the credit card companies cannot attach or seek to obtain in any way the proceeds of those insurance policies and those proceeds go directly to the beneficiaries.

However, that is not the end of the analysis. The statute further provides that if the named beneficiary in the policy is the insured (i.e. the decedent) or the estate of the insured, or his or her executors or administrators, then the insurance proceeds become part of the insured’s estate, and would be subject to distribution according to the laws governing the distribution of estates which would include the payment to creditors of the decedent prior to distribution to beneficiaries under the estate. Therefore, for estate planning purposes, if you have significant liabilities, you should consult with an estate planning attorney to review your life insurance policies to make sure that they name a beneficiary outside of your estate, so the proceeds go to the people you wish to receive the funds and not your creditors upon your death.

Another exception to the rule of life insurance policies being exempt is with regard to the beneficiary’s creditors. While one might assume that since there is an exemption for life insurance proceeds the exemption protects the proceeds are exempt from all creditors. However, the exemption is limited to creditors of the insured, namely the person who took out the policy and is not exempt from creditors of the beneficiary. Therefore, if you have a life insurance policy for your daughter, and she owes a lot of money to credit cards or hospitals, and she were to receive $100,000 worth of life insurance proceeds upon your death, that $100,000 of proceeds could be subject to attachment and levy by her creditors.

As difficult as it is, we encourage family members to be frank with their parents if they anticipate receiving an inheritance and are presently in a difficult financial position. If you are a parent looking to leave funds to a child or other relative, and you do not want your funds to go to pay off their creditors, you need to have a direct and honest discussion with them concerning their financial position. Likewise, if you know your parents are going to leave you substantial funds and you are in way over your head and maybe even possibly considering filing bankruptcy, you need to have a frank discussion with them regarding your financial position so that they are not mislead and their hard earned assets go to pay off your creditors.

A second issue that comes up is whether or not 401-K’s are exempt from creditors upon a person’s death. Under Fla. Stat. §222.21 it provides that a fund or account that meets Internal Revenue Code requirements (which is beyond the scope of this article) is exempt from all claims of creditors of the owner, beneficiary or participant of the fund or account. This is a great advantage and benefit to individuals who may have to face a foreclosure since it allows them to maintain their retirement accounts (if they have not drained them in an effort to avoid bankruptcy) and provide them with a financial basis to get a new start if necessary.

The issue that arose over the past couple of years was whether or not a qualified 401-K that was inherited was also exempt. The courts across the country were split on this issue. Some courts limited the exemption to just the owner’s creditors while others said also the beneficiary of the proceeds receive the same protections from creditors. However, just as with life insurance policies, the issue became whether the beneficiary was also protected from the beneficiaries creditors upon receipt of the 401-K.

Fortunately, this question was answered outside of the courts by the legislature amending Fla. Stat. §222.21 last year. Specifically, the Florida legislature added language to paragraph (2)(c) and provided that the fund or account is “exempt from claims of creditors of the owner, beneficiary, or participant” in that is does not cease to be exempt after the owner’s death by reason of a direct transfer or eligible rollover.

Specifically, the legislature further noted “this paragraph is intended to clarify existing law, is remedial in nature, and shall have retroactive application to all inherited individual retirement accounts without regard to the date an account was created.” This is example of one of the key roles of a legislature to clarify existing law when courts conflict in their interpretation of an existing statute.

In summary, since in the new economy it is not unusual for you to have family members going through difficult situations, it is important to discuss these issues not only with them but with your estate planning attorney to make sure that your hard earned assets go to your intended family members and not their creditors.