Keith W. Michon, P.C. Declaration of Homestead
What is the Massachusetts Homestead Act?
Under Chapter 188 of the Massachusetts General Laws, the Homestead Act provides limited protection of the value of the home, up to $500,000, against unsecured creditor claims. It is designed to protect home ownership from execution and forced sale (so long as the owner or occupies or intends to occupy the property as his or her principal place of residence). There is a one-time modest cost to prepare and record the Homestead document at the Registry of Deeds.
How Does the Homestead Act work?
To acquire Homestead protection, the owner must declare in writing that they wish to have their principal residence protected under the provisions of the Homestead Act, duly signed and notarized. After the form has been notarized, the Declaration of Homestead must be filed at the Registry of Deeds where the property is located.
What if I am Married?
An owner of a home may file for the benefit of his or her family. Although only one owner files the Homestead document, a Declaration of Homestead filed by one spouse benefits both, and their children.
Does the Homestead Act Protect Me Against All Creditors?
No. The following lists what is not protected by the Homestead Act: federal, state and local taxes and liens; mortgages contracted for the purchase of the home and most other mortgages; debts and encumbrances existing prior to the filing of the declaration of Homestead; probate court executions for spousal or child support; attachments on land not owned by the owner of the homestead; and court ordered executions in cases of fraud, mistake, duress, undue influence, and lack of capacity.
What is the special provision for the elderly or disabled under the Massachusetts Homestead Act?
The real property or mobile home of persons 62 years of age or older or who are permanently and totally disabled are afforded protection from attachment, levy on execution and sale in the amount of $200,000 for each person who has filed an elderly or disabled person's Declaration of Homestead. A disabled person must attach to the Declaration of Homestead an original or certified copy of a disability award letter issued to the person by the United States Social Security Administration or a letter signed by a licensed physician registered with the Massachusetts Board of Registration in Medicine, certifying that the person meets the disability requirements of the United States Social Security Administration at the time of filing.
Will the Homestead Act protect my home if I go into nursing home?
No. Any liens imposed by the Massachusetts Department of Revenue, for payment of medical assistance, are exempt from the Homestead protection. However, as long as the recipient or the recipient's spouse is alive, the Commonwealth will not, as of the present time, look to the residence for reimbursement of medical benefits. The Commonwealth will, however, file a claim for the reimbursement from your estate for the entire amount of Medicaid benefits paid, once the surviving recipient has died.
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