Declarations of Homestead

The Law Office of Eric P. Zine encourages homeowners in Massachusetts to take advantage of a simple but underutilized law, the Massachusetts Homestead Act that permits homeowners to protect a significant portion of equity in their principal residence from potential creditors.

The Massachusetts Homestead Act is a law under which a homeowner is protected by an Estate of Homestead (“homestead estate”). A homestead estate allows Massachusetts homeowners who reside in the home to protect their principal residence from certain creditor claims, up to a certain amount. The homestead estate is designed to protect home ownership from execution and forced sale, so long as the owner or covered family member occupies or intends to occupy the property as his or her principal place of residence.

On March 16, 2011, the new Massachusetts Homestead law went into effect. It completely revised and modernized Massachusetts General Laws Chapter 188, sections 1-10. Some important highlights include:

Homeowners get an automatic $125,000 homestead when there is no recordation of a homestead declaration

Homeowners can protect up to $500,000 in equity in their homes by recording a homestead declaration

Existing homesteads recorded prior to March 16, 2011 remain valid

All homesteads are subject to valid mortgages

Special aggregate homestead exemptions for those owners who are elderly or disabled

Both spouses can record a homestead under the new law

Availability of homestead protection for property held in Trust, where the Trustee(s) execute the Declaration of Homestead form and the Trust Beneficiary, identified as the beneficiary of the homestead

Clarifies that there is no need to re-file after refinancing (existing filings automatically subordinate to mortgages)

Mobile homes and manufactured housing can be homesteaded

Homeowners may benefit from recording a new homestead early since homesteads recorded under the new law are senior to liens recorded after the older homestead is recorded

The children and surviving spouse of a person who has recorded a new homestead gain special protections

The following are exempt from the homestead law protections:

Liens imposed by the Massachusetts Department of Transitional Assistance, as a result of the payment of MassHealth/Medicaid payments

A sale for federal, state and local taxes, assessments, claims and liens

A mortgage on the home

An execution issued from the Probate Court to enforce its judgment for alimony or child support

Buildings on the land, not owned by the owner of the homestead estate, are attached, levied or sold for the ground rent of the lot where they stand

An execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity

A lien on the home recorded prior to the creation of the homestead

Every homeowner who has not filed a homestead or has refinanced his/her mortgage in the last several years should consider recording a new homestead declaration since many refinancing mortgages contained a waiver of homestead rights.

To learn more about the Massachusetts Declaration of Homestead or any other aspect of Estate Planning or Elder Law, call Attorney Zine at 781.930.3003 or e-mail us to schedule a free consultation.