FREQUENTLY ASKED QUESTIONS ABOUT DECLARATION OF HOMESTEAD

Law Offices of

Pacifico M. DeCapua

Telephone (508)473-7240

FAX (508)478-2808

HOMESTEAD ACT
MASS GENERAL LAWS CHAPTER 188, SECTIONS 1-10

1. HOW AM I PROTECTED?
   
   The real property or mobile home which serves as an individual's principal Residence upon filing a Declaration of Homestead, shall be protected against attachment, levy on execution or sale to satisfy debts to the extent of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per residence per family.
   The statue further states, "For the purposes of this Chapter, the word family shall include either a parent and a child or children, a husband and wife and their children, if any, or a sole owner".  Thus a single person who is the sole owner of a primary residence may file for a Homestead protection to the extent of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00).  Be sure to use the proper Homestead form when you are filing.
    

2. HOW AM I PROTECTED IF I AM 62, OR OLDER, OR DISABLED?
   
   The real property or mobile homes of persons sixty-two (62 years of age or older, regardless of marital status, or of a disabled person or persons, regardless of age, shall be protected against attachment, seizure or execution of judgment to the extent of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)) EACH.
    

3. WHAT DOES THE HOMESTEAD LAW MEAN BY A "DISABLED PERSON?
   
   A disabled person is defined as an individual who has any medically determinable permanent physical or mental impairment, which would meet the disability requirement of supplemental social security.  You must attach to the Homestead form a certified copy of 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.  Disabled persons must meet the disability requirements stated in 42 USC 1382 (a) (3) (A) and (C).  Basically, an individual is considered disabled, for the purpose of the law, if he or she cannot engage in any gainful activities, a result of the physical or mental impairment.
    

4. IS MY SPOUSE AND CHILDREN COVERED, SHOULD I PASS AWAY?
   
   YES.  Should the parent who declared the Homestead die, the law protects the house until the youngest unmarried child reaches the age of eighteen (18) and until the surviving spouse dies or remarries.
    

5. IF I AM OVER 62 AND MY SPOUSE IS UNDER 62, SHOULD WE BOTH FILE?
   
   Only one joint owner under 62 years of age can file a Homestead for the family.  However, for elderly and disabled individuals, the protection up to FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) is for each person's ownership interest.  Therefore, it is recommended that the person over 62 years of age file for the larger protections.  As other individual owners turn 62, they should also apply.
    

6. WILL MY HOMESTEAD DECLARATION PROTECT MY HOME FROM BEING TAKEN IF I GO INTO A NURSING HOME?
   
   Liens imposed by the Massachusetts Department of Public Welfare, as a result of the payment of Medicaid benefits, are exempted from the Homestead Protection.  However, as of the printing of this pamphlet, as long as the recipient, or the spouse of the recipient is alive, the Commonwealth will not look to the residence for reimbursement of Medicaid benefits.  If the surviving spouse is also the recipient of Medicaid benefits, the Commonwealth will file a claim for reimbursement from the estate for the entire amount of Medicaid benefits paid, once the surviving recipient has died.  The rules and regulations regarding Medicaid are complicated and constantly changing.  You should seek competent legal counsel to address your specific concerns regarding Medicaid.
    

7. IS THERE ANYTHING I WILL NOT BE PROTECTED FROM?
   
   The following are exempt from the Homestead Law:  Federal, State, and Local Taxes, assessments, claims, and liens; first and second mortgages held by financial institutions or other; any and all debts, encumbrances or contracts existing prior to the filing of Declaration; 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 owner of a Homestead estate are attached levied upon or sold for the ground rent of the lot whereon they stand.
    

8. CAN (A) TRUSTEE(S) FILE FOR HOMESTEAD PROTECTION?
   
   The Massachusetts Land Court has determined that registered land held in a trust CANNOT be given Homestead protections.  There is no such prohibition regarding recorded land.  Until there is court clarification, we suggest you record a Homestead, even if your property is in trust and is not registered land.
    

9. WHAT HAPPENS TO MY HOMESTEAD IF I SHOULD RE-MORTGAGE OR TAKES OUT A SECOND MORTGAGE OR HOME EQUITY LOAN?
   
   In some cases, the lending institution may require that your Homestead be released.  In that case, once the mortgage is recorded or registered, you can record a new Homestead.  The statute in some cases exempts first and second mortgages from Homestead rights, so the chances are you will not have to release a Homestead to refinance or obtain a home equity loan.  Also, most standard mortgage forms used today have a specific release of homestead rights for that particular transactions, which negates the necessity to file a general release of Homestead.
    

10. IF I DIVIDE MY TIME EQUALLY BETWEEN MY WINTER AND SUMMER RESIDENCES, CAN I DECLARE A HOMESTEAD ON BOTH?
    
    NO.  A Homestead can be declared only on an applicant's residence, and you can only have one residence.  Neither can a husband declare a Homestead on one house, while his wife files a Homestead on the other.  The Homestead can only be declared on one's personal residence.
     

11. DOES THE HOMESTEAD PROTECTION TAKE THE PLACE OF HOME INSURANCE?
    
    ABSOLUTELY NOT!  The Homestead protection is not a substitute for Home Insurance or any other type of liability insurance.  These are separate and distinct protections.  The Homestead protection will only be effective after any liability insurance is used to pay for any judgments that are related to liability incurred under that particular insurance policy; e.g. home, automobile, etc.
     

12. IS THE HOMESTEAD FORM DIFFICULT TO UNDERSTAND AND FILL OUT?
    
    NO.  It simply calls for basic information.  Just be careful when writing (typing) in your Book and Page numbers or your Certificate of Title number; both are shown on your deed, or in the case of Registered Lane, on your Certificate of Title.
     

13. CAN MY HOMESTEAD BE TERMINATED?
    
    The estate or claim of Homestead shall be terminated upon the sale or transfer of the real property or mobile home during the declarant's lifetime, upon the death of the surviving declarant or by a release of the Homestead estate duly signed, sealed, and acknowledged by the declarant, and recorded at the Registry of Deeds, or when the property ceases to be your residence.
     

14. WHAT IS THE RECORDING FEE?
    
    The cost of filing (the recording fee) the Declaration of Homestead is thirty Dollars ($35.00).  The form must be signed by the declarant filing and his/her signature notarized.  Remember, only one joint owner filed the Homestead if the declarant is under 62, but all declarants over 62 must sign.
     

15. HOW CAN I TELL IF MY REAL PROPERTY IS RECORDED OR REGISTERED LAND?
    
    In 85% of the cases, your real property is Recorded Land.  Your evidence of title will be a quitclaim deed.
    If your property were Registered Land, you would have received a large document called an Owner's Duplicate Certificate of Title.
    When recording your Homestead at the Registry of Deeds, if you do have Registered Land, you must present your Owner's Duplicate Certificate of Title with your Homestead form.  Your Owners' Duplicate Certificate of Title will be returned to you at a later date.  (If you are still not sure whether your real property is Recorded or Registered, call your Registry of Deeds.)