Homestead in Massachusetts – FAQ

Protect your Home with a Homestead Declaration

Why File a Homestead Declaration for Your Massachusetts Home?

The number one reason why a Massachusetts homeowner would want to file a homestead declaration is to protect the home from liability. While a homestead declaration does not protect from all lawsuits and claims, it certainly does protect from many…read on to learn how.

What is a Homestead Declaration?

By operation of law, in Massachusetts, the principal residence is protected up to $125,000 automatically, without the filing of a homestead declaration. However, this amount may be insufficient to protect your home’s value. By simply filing a document with the registry of deeds in the county in which the property is located, the home may be protected up to $500,000.

Who may file for Homestead Protection?

• THE HOME OWNER OR OWNERS – who either currently live in the home as a primary residence or intend to do so
  • Owners are further defined as those owning the property as joint tenants, tenants by the entirety, tenants in common, sole ownership….even life estates, beneficiaries of trusts may be owners under the law.
  • If there are 2 owners owning as joint tenants or as tenants by the entirety, under the law the dollar value of homestead protection is not split between them.
  • If there are multiple joint tenant owners (that is, greater than 2), it may be possible to increase the amount of the exemption.
  • If there are multiple owners owning the property as tenants in common, the dollar amount of the exemption is allocated proportionally by the interests of each tenant in common.
  • Beneficiaries of a trust, where multiple, also may claim the homestead exemption and as with tenants in common the dollar amount of the homestead exemption is allocated according to their proportional interests.
• TRUSTEES OF A TRUST – a trustee will file a declaration of homestead on the behalf of all trust beneficiaries.

Where is a Declaration of Homestead Filed?

A declaration of homestead is filed in the county where the property is located, at the Registry of Deeds in that county. Our office charges $80 for filing a Declaration of Homestead.

What Protection Does a Homestead Really Offer?

In the end, the most important question and reason for filing a declaration of homestead in Massachusetts is to gain the liability protection that such a filing offers. Here is what a homestead really provides:

• PROTECTION FROM ATTACHMENT *
• PROTECTION FROM SEIZURE *
• PROTECTION FROM JUDDGMENT EXECUTION *
• PROTECTION FROM SALE TO SATISFY DEBT *

* NOTE: The amount of the homestead exemption is $500,000 in the typical case, although this amount will vary by type of ownership of the property (joint tenancy, tenancy in common, trust, etc.) and the number of owners. There may be exceptions to the homestead protection offered in a particular case, therefore, it is critical to speak with an attorney about your specific case.

In addition to the above-mentioned protections, a homestead filing in Massachusetts does the following:

• ALL FAMILY MEMBERS HAVE THE RIGHT TO THE USE, OCCUPANCY AND ENJOYMENT OF THE HOME
• UNLISTED SPOUSES MAY ENJOY SIMILAR PROTECTIONS
• A DIVORCE, UNLESS OTHERWISE CONTRACTED OR AGREED TO, WILL NOT RESULT IN THE LOSS OF THE PROTECTION AS A RESULT OF THE DIVORCE
• REMARRIAGE WON’T CHANGE THE CURRENT HOMESTEAD FOR THE SPOUSE MAINTAINING THE HOME AS A PRIMARY RESIDENCE
• OVER 62 YEARS OF AGE – UPON FILING A DECLARATION OF HOMESTEAD, EACH MAY BE ELIGIBLE FOR $500,000 PROTECTION *
• DISABLED INDIVIDUALS ALSO SHARE SPECIAL PROTECTIONS UNDER THE LAW *

* NOTE: Contact our office to assist you if you are disabled or elderly to see what protection under the homestead law you may be eligible for.

Why a homestead matters: protection from unsecured creditors

The main value of a homestead is protection from most unsecured creditors. An unsecured creditor lends money without collateral. A credit card company is the classic example. Compare a car loan, where the lender can repossess the car if payments stop. Unsecured creditors who win a judgment usually look for assets to reach, and a home with equity is often the biggest one. A homestead keeps them from reaching the protected equity in your principal residence through attachment, seizure, execution or forced sale. The same protection usually applies to many judgments from lawsuits against the homeowner.

Because the automatic protection is only $125,000 and a declared homestead protects up to $500,000 for the cost of a modest filing, recording a declaration is usually worth it.

What Does the Homestead Exemption Not Protect My Massachusetts Residence From?

• The Home Mortgage
• A prior recorded lien (a lien recorded before the homestead exemption was applied for)
• Sale of the Home for Tax Liens, Claims, Assessments
• Spousal or Child Support order enforced by a Probate Court
• A court enforcing an order based on your fraud, duress, lack of capacity, mistake, or undue influence
• Other – related to buildings on land that the home owner doesn’t own that are attached or otherwise sold or levied

Homestead and Bankruptcy in Massachusetts

Having a homestead declaration filed on a home, in combination with filing for Chapter 7 bankruptcy may result in a homeowner being able to either keep a larger portion of the proceeds from the home sale or might result in the home not being sold. In a Chapter 13 bankruptcy, the homestead exemption allows the homeowner to reduce the amount required to pay unsecured creditors.

How do I Stop or Remove a Declaration of Homestead in Massachusetts?

• Record a release of homestead with the Registry of Deeds
• Conveying the deed to another person (not a family member)
• Trust related terminations of property
• Home abandonments, in certain cases
• Filing a declaration of homestead on a different home

What Actions DO NOT Stop or Remove a Declaration of Homestead?

• Transferring the property between spouses, even former spouses, current co-owners such as tenants in common, trustee/beneficiaries, or life tenants
• Failing to obtain the signature of a necessary signor to the release (for example, from a co-owner, former spouse, or spouse that is not listed as an owner living in the home when the home is conveyed or the declaration of homestead released

Complicated Homestead Issues

Please take note of the fact that the Massachusetts law about homesteads is complex and requires a thorough understanding of the many issues involved. Consult our offices to find assistance in the completion of a declaration of homestead, changing the name on a deed or other similar concerns.

Related Articles

• Landlord – Tenant Issues: The Massachusetts Residential Landlord
• What is a Massachusetts Estoppel Certificate?

About the Author

Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises homeowners on homestead protection, deeds and title issues. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.

ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.