Need a Homestead Declaration?

(This article was originally published in the Wakefield Daily Item on January 5, 2012)

By PATRICK G. CURLEY, ESQ.

Q. I don’t have a Homestead Declaration – should I?

A. The short answer is yes, absolutely!  Anyone who owns a primary residence in Massachusetts can file a Homestead Declaration, even if you are a joint owner or just own a life estate.

The Homestead Statute was completely overhauled in March 2011, and the new law has many complex provisions.  But as a general matter, by filing a Homestead Declaration a single owner or a couple under age 62 can protect up to $500,000 in equity in their primary residence. If a homeowner is over 62 or disabled, he or she can ‘stack’ the Homestead protection – that is $500,000 in protection per owner. That means a couple over 62 who own their own home can protect $1 million in equity.

Under the new statute, a homeowner who fails to file a Homestead only has the ‘automatic’ statutory protection of $125,000 in equity. However, the vast majority of homes in Massachusetts have a much higher value so filing is critical for most people.

Also, the new statute for the first time authorizes homeowners who own their homes in Trust to take advantage of homestead protection.  This is great news for homeowners because they can enjoy all the Homestead benefits while enjoying the many planning advantages offered by Trusts.

A timely-filed Homestead can protect your home equity against lawsuit creditors, ordinary debts, and bankruptcy.  Do not rely on the protections afforded you by your auto and homeowners insurance alone.  A Homestead can be a lifesaver if you are sued for more than your policy limits.

Keep in mind, however, that a Homestead offers no protection against certain types of creditors including but not limited to Medicaid (MassHealth), Tax liens, child support obligations, and mortgages or pre-existing liens.

To be clear, a Homestead Declaration will not protect your home from nursing home costs.  For that protection, you will need careful guidance from a Qualified Elder Law Attorney.  That type of protection for your home will be the subject of another column.

 (Patrick G. Curley is a Certified Elder Law Attorney, was selected to 2011 MA Super Lawyers, and serves as a member of the Board of Directors of the MA Chapter of the National Academy of Elder Law Attorneys.  He practices law at Curley Law Firm LLP at 1 Common Street in Wakefield.  Do you have an Elder Law or Estate Planning question?  E-mail questions to Info(at)CurleyLawFirm.com or call 781.245.2222 x10 to be considered for future columns).

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Contact Us!

Do you have an Elder Law or Estate Planning question? E-mail questions to Info@CurleyLawFirm.com or call 781.245.2222 x10 to be considered for future columns).

About Curley Law Firm LLP

Serving clients throughout Massachusetts, Curley Law Firm LLP draws upon more than four decades of combined Estate Planning and Elder Law experience to ensure that you can achieve your planning goals.

Attorneys Patrick Curley and Lucy Budman are two of fewer than two dozen Certified Elder Law Attorneys (CELA) in Massachusetts. Attorney Mark Curley has practiced in the areas of Estate Planning and Elder Law for over three decades.

The value of working with a firm with CELAs on the team is the peace of mind you receive - knowing that you will get the very best advice available to protect yourself, your family and your assets. A CELA is a recognized expert in legal matters dealing with Estate Planning and Elder Law including Trusts, Wills, Asset Protection against Medicaid and nursing home costs, Medicaid (MassHealth) benefits planning and applications, Probate and Trust administration, Guardianship and Conservatorship, and VA benefits planning.

At a time when many lawyers claim to practice "elder law", having a CELA-led team working on your planning means having one of the very few experts in the Commonwealth on YOUR team.

For experienced representation and quality service from attorneys who will help you achieve your planning goals, please schedule a confidential Initial Consultation by calling us at (866) 406-8582 or visit our website at www.CurleyLawfirm.com

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