Homestead Law 2017-04-25T13:19:21+00:00

Ins and Outs of the Massachusetts Homestead Law

Your personal liability insurance on your homeowners, automobile, and umbrella policies is designed to financially protect you if you are responsible for personal or property damage to a third party. But what happens when that coverage is not enough? There are many situations where you may not have the appropriate coverage, or where you may get sued for more than the amount of coverage that you carry. It is a very real possibility that your assets, including your house, would be vulnerable in a large personal injury settlement. The state of Massachusetts has developed the Homestead Act to help protect your primary residence against third-party claims. At Ellis Insurance we strongly recommend that, in addition to appropriate liability insurance coverage, all Massachusetts home and property owners file a Declaration of Homestead.

At Ellis Insurance we strongly recommend that, in addition to appropriate liability insurance coverage, all Massachusetts home and property owners file a Declaration of Homestead.

 

Below is information on what the Homestead is, what it covers, and how to file the appropriate paperwork.

In Massachusetts, an estate of Homestead is an interest in real property designed to protect the possession and enjoyment of the owner or owner’s surviving spouse and dependent children against the claims of creditors by protecting the property from execution and forced sale, so long as such person occupies or intends to occupy such property as his or her principal place of residence. M.G.L. c. 188, ss. 1-10.

There are two entirely separate estates of Homestead. The first is the estate of Homestead under M.G.L. c. 188 sec. 1.

This Homestead has a value of $300,000.00 and may be declared by an owner of a home for the benefit of his or her family. For the purposes of the Homestead law the word “family” includes either a parent and child or children, a husband and wife and their children, if any, or a sole owner. The property must be occupied as a principal residence. While the statute directly contradicts itself on this point it appears that only one spouse may declare a Homestead under M.G.L. c. 188, ss. 1.

The second type of Homestead is the elderly or disabled person Homestead under M.G.L. c. 188 sec. 1A. It is available to people sixty-two (62) years of age or older and disabled persons who meet the requirements of the statute. This Homestead has a value of $300,000.00 per person and may be declared by both spouses. It applies to the individual, not the family.

Homesteads are formalized by recording a Declaration of Homestead form at the Registry of Deeds. Forms are available at the Registry of Deeds for each county.

All Homesteads must be filed in the county in which the residence is located. Each county has slightly different requirements for filing the Homestead so it is important to contact the Registry of Deeds for your county directly. Contact information for each counties Registry can be found here.

Upon filing a Declaration of Homestead the real property that serves as an individuals principal residence is protected against attachment, levy on execution and sale for payment of debts for legacies, to satisfy non-exempted debts, to the extent of Three Hundred Thousand Dollars ($300,000.00) for a regular Homestead. For an elderly or disabled person Homestead the same protection applies up to Three Hundred Thousand Dollars ($300,000.00).
The following are exempt from Homestead protection: federal, state and local taxes, assessments, claims and liens; first and second mortgages held by financial institutions and others; any and all debts, encumbrances or contracts existing prior to the filing of the declaration of Homestead; an execution issued from the probate court to enforce its judgment that a spouse pay for the support of a spouse or minor children; where buildings on land not owned by the owner of a Homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand.
A disabled person is defined as an individual who has any medically determinable permanent physical or mental impairment that would meet the disability requirement of supplemental social security. You must attach to the Homestead form a certified copy of a disability letter issued by the United States Social Security Administration, or a letter signed by a licensed physician registered with the Massachusetts Board of Registration in Medicine that states the declarant is disabled as defined in 42 USC 1382 (a) (3) (A) and (C).
The law is unclear on this issue. Recent court cases suggest that the Homestead applies to the equity above any exempted liens or encumbrances.
It depends. The Homestead statute exempts first and second mortgages from Homestead rights, so the chances are that you will not have to re-file. In some cases the mortgage form itself limits the release of Homestead rights to that particular transaction, which negates the necessity of re-filing the Homestead. In other cases, however, the lending institution may require that your Homestead be released prior to refinancing. In that case you would have to re-file.
The cost of filing the Declaration of Homestead is thirty five dollars ($35.00).
The Massachusetts Land Court has determined that registered land held in a trust cannot be given Homestead protection. There is no such limitation regarding recorded land.
No. Liens imposed by the Massachusetts Department of Transitional Assistance, as a result of payment of Medicaid benefits, are exempt from Homestead protection.
Yes. To acquire an estate of Homestead for a mobile home, you must file at the city or town clerk’s office in the city or town in which the mobile home is located, not at the Registry of Deeds.

To download a printable Homestead Law form click here.  

 

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