Declaration
of Homestead: What Are My Homestead Rights?
For
most of us, our home is our largest asset. We live in
our homes today and we count on our home's equity for
retirement tomorrow. We all have homeowner's insurance
to protect that investment from fire and casualty. However,
most homeowner's fail to take the simple steps to protect
their home from the reach of creditor's and themselves
from getting sued. For the cost of drafting and filing
a Declaration of Homestead with the appropriate Registry
of Deeds, The Massachusetts Homestead Act, Massachusetts
General Laws, Chapter 188, protects a family's use and
possession of their home from the claims of creditors.
Under
normal circumstances, if a creditor obtains a judgment
against the homeowner by suing them in court, the creditor
can satisfy their judgment by forcing a sale of the property
unless the homeowner takes advantage of the Homestead
Act. The Homestead Act provides that a homeowner and his
or her family are entitled to an Estate of Homestead which
protects the equity in their home to the extent of $500,000.
As such, the property is exempt, up to the exemption amount,
from the laws which allow creditors to force the sale
of a homeowner's property to payoff debt.
The
protections of the Homestead Act are not automatic but
are triggered by the recording of Declaration of Homestead
in the appropriate Registry of Deeds. The protection of
the Act extends to both spouses and their minor children;
however, the Act applies regardless of the homeowner's
marital status or whether they have children. The rights
under the Homestead survive the death of the declaring
homeowner and continue to benefit a surviving spouse and
their minor children.
Of
course as with any legal matter, there are exceptions.
Among the common exceptions, the Homestead Act does not
protect a homeowner for failure to pay taxes, debt contracted
prior to the acquisition of the Estate of Homestead, debt
contracted for the purchase of the home and alimony or
child support.
The Homestead Act only applies to the homeowner's principal
residence, so a homeowner can only have an Estate of Homestead
in one home. The residence can be a single family, multi-family,
condominium or apartment house, as long as; the property
is the homeowner's principal residence. The property can
be owned solely or jointly. The Act does not apply to
second homes or vacation properties.
The Homestead Act also contains a special provision for
the elderly and disabled. For most homeowner's who are
not disabled or who are under the age of 62, the maximum
protection of the Act is $500,000. However, for each homeowner
who is elderly (over the age of 62) or disabled there
is a $500,000 exemption. For example, a married couple,
who both are over the age of 62, can claim $1,000,000
as an exemption. A special Declaration of Homestead must
be filed in the appropriate Registry of Deeds to take
advantage of the special provision for the elderly and
disabled.
We will pay hundreds, even thousands of dollars, on a
yearly basis to protect our homes from fire or other disasters.
Yet, so many homeowners fail to protect themselves and
their homes from lawsuits and creditors. For the negligible
cost and effort to take advantage of the Homestead of
Act, it only makes sense.