Circumstances have changed after you are being adjudged a bankrupt. Bankruptcy will affect your day-to-day finances.
You have a duty to let the Director General of Insolvency [3] know of any of the following change of circumstances:
you have made EPF savings withdrawal
you have property ownership
you have received inheritance of cash or property
you have received cash surrender value of an insurance
you have received a lump sum payment more than RM500 and is not part of your usual income
Is a bankrupt eligible to receive inheritance?
An inheritance is not a creditor proof asset thus it is vulnerable to a claim by the Director General of Insolvency to the credit of your bankruptcy estate account.
An inheritance is not a creditor proof asset thus it is vulnerable to a claim by the Director General of Insolvency to the credit of your bankruptcy estate account. You are unable to keep it therefore if you expect to receive an inheritance during bankruptcy, it is important that you consider your options.
You can get an inheritance from a trust or someone has died and left you an inheritance. An inheritance includes money, investments and property.
If a real property is jointly owned by few persons, the Director General of Insolvency won't usually realize the property. Partly, it also depends on the interest you have in the property. However, if all owners of the real property agree to sell it, the Director General of Insolvency may realize the property to make a distribution of the proceeds you are entitled, to creditors.
You may want to consider disclaiming an inheritance, without taking possession and control of the assets inherited, to avoid subjecting the proceeds to creditors. This is a sensible option if you are the heir by descent, whereby your children will then take in your place to receive the inheritance.
If you take possession of an inheritance and then give it to your children, the Director General of Insolvency may recover such property and reverse the transaction for the benefit of the creditors and you may have committed an offence punishable under the Insolvency Act 1967 [Act 360] relating to fraudulent transfers or transactions.
If you are a trustee, who holds title to a property in trust for the benefit of other person, that property will not become part of your bankruptcy estate. It cannot be distributed to your creditors.
What's the impact of bankruptcy on property ownership?
Once you are declared a bankrupt, all the property which belongs to you will be vested in the Director General of Insolvency.
Once you are declared a bankrupt, all the property which belongs to you will be vested in the Director General of Insolvency as provided under section 8 [1] of the Insolvency Act 1967.
Section 8(1)(b) of the Insolvency Act 1967 [Act 360]:
Effect of bankruptcy order
(1) On the making of a bankruptcy order-
(b) all the property of the bankrupt shall become divisible among his creditors and shall vest in the Director General of Insolvency and the Director General of Insolvency shall be the receiver, manager, administrator and trustee of all properties of the bankrupt.
The Director General of Insolvency will collect and sell your assets to make payment to your creditors in accordance with the Insolvency Act 1967 [Act 360].
If all or part of your property has been mortgaged, the property will be subject to the right of the mortgagee, also known as the secured creditor, to exercise all the rights of a secured creditor to deal with the property including the right of sale. The secured creditor has 12 months from the date of the bankruptcy order to sell the property or otherwise deal with the bankrupt's interest in it.
Do note that the sales and purchase of a real property is always routed through the Inland Revenue Board Of Malaysia (Malay: Lembaga Hasil Dalam Negeri). As such, even if you buy a property with cash during bankruptcy, the Director General of Insolvency may eventually have a claim on the property for the benefit of your creditors.
What's the impact of bankruptcy on EPF savings withdrawal?
The Director General of Insolvency is entitled to claim a certain amount of money you received from your EPF withdrawal to repay your creditors depending on exact circumstances.
Your savings with the Employees Provident Fund (EPF) is creditor proof and cannot be claimed by the Director General of Insolvency [2], unless and until EPF pays any amount payable to you. In other words, the money you received from this protected source and that you already have in your bank account at the time before or during your bankruptcy is no longer protected.
Section 51(1) of the Employees Provident Fund Act 1991 [452]:
Contributions and deposits not to be assigned or attached
(1) Notwithstanding anything to the contrary contained in any
other written law-
(a) no sum deducted from the wages of a member of the Fund under section 48;
(b) no amount payable by the employer as his contribution; and
(c) no amount standing to the credit of a member of the Fund,
shall be assignable, transferable, liable to be attached, sequestered, levied upon, for, or in respect of, any debt or claim whatsoever, nor shall the Director General of Insolvency be entitled to or have any claim on any such sum or amount.
If you intent to withdraw all or part of your savings from the Employees Provident Fund (EPF), you need the permission from the Director General of Insolvency. The Director General of Insolvency is entitled to claim a certain amount of money you received from your EPF withdrawal to repay your creditors depending on exact circumstances.
^ Section 51 of the Employees Provident Fund Act 1991 [452]
^ Previously known as the "Official Assignee" - Section 17 of the Bankruptcy (Amendment) Act 2003 [Act A1197] changed the name of Official Assignee to Director General of Insolvency.
