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More information you should know about different types of payments and if your trustee can claim them in bankruptcy.
How payments from the Coronavirus Economic Response Package affect people in bankruptcy
Economic support payments - are not claimable by your bankruptcy trustee as income or as an asset, regardless of whether you receive the payments before or after the date of bankruptcy.
COVID-19 supplement payments - are claimable by the trustee if you receive them before the date of bankruptcy and it remains in your bank account when you become bankrupt. During bankruptcy these payments are included in your after-tax income amount. If your after-tax income exceeds a set amount, you may have to make compulsory payments
More information about these types of payment are available at Services Australia.
Early access to superannuation - Should you receive payments from your superannuation under the Coronavirus Economic Response Package, there is no change to the way this payment is treated in bankruptcy. See Is my superannuation affected? for details on what happens to your super during bankruptcy.
The Australian Taxation Office has more information about super payments on their website at Early access to your super.
Can I keep cash or money in a bank account?
The trustee can take any cash or money you have in a bank account at the date of bankruptcy, but will leave you with enough for modest living expenses.
During your bankruptcy, you can keep income that you save. However, if your after-tax income exceeds a set amount, you may have to make compulsory payments. This amount changes with how many dependants you have.
See Income and employment for more information about compulsory payments and earning income during bankruptcy.
While you can keep income you earn after your date of bankruptcy, you can’t keep any property or assets purchased with this money.
Is my superannuation affected?
It depends on when and how you receive super. You must inform your trustee if you receive any super before and/or after your bankruptcy begins.
Super payments you receive before bankruptcy:
- are claimable by your trustee
- your trustee can claim assets you purchase with those funds, e.g. a house.
Super payments you receive during or after bankruptcy:
- are not claimable by your trustee if it is a lump sum payment
- your trustee cannot claim assets you purchase with those funds, e.g. car.
An exception is where your super isn’t in a regulated fund, approved deposit fund or an exempt public sector scheme. Your trustee can claim super not held in these types of funds. Refer to your super fund provider if you are unsure which type of fund your super is in.
Super you receive as income:
During bankruptcy, super you receive as an income stream (e.g. a pension) forms part of your assessable income. If your income is over a set amount, you may need to make compulsory payments.
Self-managed super funds
Someone who is bankrupt can’t be a trustee of a self managed super fund. If you have a self managed fund you must advise your trustee. You must cease acting in this position and notify the ATO within 28 days. See the ATO website for more information about removing yourself as a trustee.
How are compensation payments treated?
Whether you can keep compensation you receive depends on the type of payment. When you receive a compensation payment, you must inform your trustee. Your trustee can request supporting documents to determine whether they will claim it. If they claim it, they can use it to help repay your debts.
Note: This information is a guide only, as the legal treatment of these payments can be complex. You may wish to seek your own legal advice.
Your trustee is not able to claim:
- compensation for personal injury or wrong done to you or your family. For example, payments for an injury due to a car accident
- life insurance or endowment payments that you/your partner receive after you became bankrupt
- assets you buy wholly or substantially with these payments.
We also refer to these types of payments as protected money.
Your trustee is able to claim:
- life insurance or endowment payments that you/your partner receive before you became bankrupt
- compensation payments you receive that do not relate to personal injury or wrong done to you. For example, payments for illness that is not a result of a personal injury.
If you are unsure what the compensation was for, we encourage you to get your own legal advice.
What happens if I receive an inheritance?
If you receive an inheritance, your trustee is able to claim this to help repay your debts. This applies if the right to an inheritance arises before or during your bankruptcy.
You, or the executor of the will must notify your trustee of the inheritance within 14 days of becoming aware of the entitlement. If you receive the inheritance before your bankruptcy begins, you will need to put this information in your application. When you enter bankruptcy, your trustee can request supporting documents.
The Bankruptcy Act does not impose any restrictions to prevent you being an executor of a will during bankruptcy.
Executors are encouraged to ensure the people receiving an inheritance are not bankrupt by doing a Bankruptcy Register Search.
Can I buy/be given shares?
Shares and dividends are assets that the trustee can claim. This also applies to restricted shares and shares in your employer's business or a private company.
What happens to my cryptocurrency?
Cryptocurrency is virtual (paperless) currency that people can purchase and invest in. A commonly known type of cryptocurrency is Bitcoin, however there are many other types.
If you become bankrupt, cryptocurrency is an asset that your trustee can claim. This is because it is a digital asset that may be sold for profit or gain, similar to shares. This applies whether you have acquired the currency prior to bankruptcy or during the bankruptcy. You must inform your trustee if you own or acquire cryptocurrency.
You will normally have a security key to access the cryptocurrency. You will need to provide it to your trustee if they request it.