Questions and Answers About Declarations of Homestead
Each Type of Exemption Was Automatically Increased to $500,000.00 on October 26, 2004
What is a Declaration of Homestead?
A “Declaration of Homestead” is a simple and inexpensive legal document that can protect part (or perhaps all) of the value of your home from most of your future creditors and lawsuits against you. Unless you own a mobile home, it must be recorded in your county at the Registry of Deeds or Registry District of the Land Court. If you own a mobile home, it must be filed at your Town Hall or City Hall.
Why should I have a Declaration of Homestead?
If you do not have a Declaration of Homestead in place, and are sued and lose, there is a chance that you could lose your home if your insurance does not fully cover the lawsuit. If you have a Declaration of Homestead in place, and are sued and lose, your home may instead be totally protected during your lifetime.
Other than in foreclosure actions for failure to make mortgage payments, cases where a person gets sued and loses his or her home are rare. Unfortunately, until your case is tried and settled, you may not be sure that your home is safe. You cannot know until that time whether the verdict would be in excess of the amount which would be paid by your applicable insurance (i.e., homeowners insurance for an accident at your home, or automobile insurance for a motor vehicle accident).
Even if you are represented by a good lawyer who assures you that you have nothing to be worried about, you would probably be nervous if you were sued, and for at least a short time you would probably fear the worst. Knowing that you have taken action to protect your home would undoubtedly lessen your fears, so, if you are eligible, why not make a Declaration of Homestead? Just about anyone who owns a home is eligible for one of the three types that exist.
What is a regular Declaration of Homestead?
A regular Declaration of Homestead can be made by almost anyone. Until November 1, 2000, it protected the first $100,000.00 of the home’s value for you and your family; from November 2, 2000 through October 25, 2004, it protected $300,000.00. From October 26, 2004 on, it has protected $500,000.00. It gives your surviving spouse protection until his or her death or remarriage, whichever occurs earlier. It also gives each child of yours protection until he or she reaches the age of 18 years or becomes married, whichever occurs earlier.
Can a regular Declaration of Homestead ever pose any problems?
You can release a regular Declaration of Homestead at anytime and eliminate the rights that it gives to your spouse and minor children. You therefore should not have any problems if you later want to sell or mortgage the home.
If you die and an unmarried child of yours who is under the age of 18 years continues to live in the home, however, a regular Declaration of Homestead could cause your surviving spouse to have problems in selling or mortgaging the home. These problems occur because the spouse’s rights conflict with the child’s rights. Thus, a married person who has young children should not make a regular Declaration of Homestead without consulting an attorney who is thoroughly experienced in this area of law.
What is an Elderly or Disabled Declaration of Homestead?
Until November 1, 2000, an Elderly Declaration of Homestead protected the first $200,000.00 of the home’s value; from November 2, 2000 through October 25, 2004, it protected $300,000.00. From October 26, 2004 on, it has protected $500,000.00. Only a person who is at least 62 years of age can make it.
Until November 1, 2000, a Disabled Declaration of Homestead protected the first $200,000.00 of the home’s value; from November 2, 2000 through October 25, 2004, it protected $300,000.00. From October 26, 2004 on, it has protected $500,000.00. Only a person who has a physical or mental impairment which is considered a disability by the Social Security Administration can make it. While the other types of Declarations can be very simple to prepare, the disabled type is more complicated because it is not valid unless you produce and record or file written proof of the disability.
Are Elderly or Disabled Declarations of Homestead fairly new?
The elderly and disabled types have only been available since 1987. If you recorded or filed a Declaration of Homestead prior to 1987 and wish to take advantage of the additional protection that an elderly or disabled type can give you, you can record or file a new one.
Must I record or file a new Declaration of Homestead to increase my protection to the new amount as of October 26, 2004?
No, the law has automatically increased each type of Declaration of Homestead to $500,000.00 of protection, although not against a creditor whose enforceable rights existed before the change in the law.
Can more than one person make a Declaration of Homestead?
Generally, only one owner of the home can make a regular Declaration of Homestead if the home is owned as joint tenants or as tenants by the entirety. More than one person can make an Elderly or Disabled Declaration of Homestead, and increase their protection.
What does a Declaration of Homestead not cover?
No type of Declaration of Homestead protects any of the home’s values against a pre-existing debt or mortgage, but it can protect you against some lawsuits. Further, no type of Declaration of Homestead protects any of the home’s value against the possible impact of nursing home costs.
My home is in a revocable trust, so isn’t it already safe from creditors?
No, not at all. A home that is in a revocable trust has no protection against the creditors of the person who established the trust. Further, a person whose home is in a revocable trust cannot make a Declaration of Homestead. Deeding your home into a revocable trust is just about the worst move you can make if protection from creditors (including nursing homes) is a concern. Unfortunately, revocable trusts may often be sold without any explanation of this legal issue.
If a Declaration of Homestead will not protect my home if I have to go into a nursing home, what must I do instead?
The only way to protect your home in case you have to go into a nursing home is to make some sort of legal transfer of the home. To protect the home fully under current law, such a transfer sometimes (but not always) has to be made 60 months before you have to enter a nursing home.
What happens if I am sued and my home is worth more than the amount protected by my Declaration of Homestead?
If your home is worth more than the amount which is protected by our Declaration of Homestead, anyone who sues you may still be able to force a sale of your home (again, assuming that your homeowners or automobile insurance does not fully cover the lawsuit). After the sale, however, you would be able to walk away with the protected amount.
Should I make a Declaration of Homestead, then?
As our society seems to be becoming more litigious all the time, protecting your home against future lawsuits may be of great psychological (if not financial) importance to you. Making a Declaration of Homestead is not the only way to protect your home, nor is it necessarily the best way for married couples, but it at least affords a good deal of protection and peace of mind. Anyone who has not yet made one of the three types described above should strongly consider doing so.
Call the office of Brian E. Barreira at 508-747-8282 to schedule an appointment today. He has offices conveniently located in Plymouth and Hingham, Massachusetts, so he is always easy to reach.