HOMESTEAD ACT
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QUESTIONS OFTEN ASKED ABOUT THE HOMESTEAD ACT 1. HOW AM I PROTECTED AND HOW OLD MUST I BE?
There are two forms available, one is for a person sixty-two (62) years of age or older, despite marital status, or a disabled person or persons despite age (which is called the elderly or disabled declaration of homestead form). The other would be for anyone else not included in the above category. The elderly or disabled form protects against attachment, seizure or execution of judgement to the extent of Two Hundred Thousand Dollars ($200,000). Real property or mobile homes must serve as an individual's principal residence and each individual filing will be eligible for protection regardless of whether such declaration is filed individually or jointly with another. Elderly persons filing jointly, regardless of marital status, will be exempt up to ($200,000) or in some cases up to ($400,000). Each elderly or disabled person is eligible for such protection. A husband & wife (both 62 years or older may each claim a homestead. The total protection would then be $400,000. This only applies to the elderly and disabled: the regular homestead may only be claimed by one person as always. A disabled person is an individual who has any medically determinable permanent physical or mental impairment which would meet the disability requirements for supplemental social security income under the U.S. code. He or she must file with any claim of homestead: (a) An original or certified copy of a disability award issued by the United States Social Security Administration. or (b) A letter signed by a licensed physician certifying that the claimant meets the disability requirements of the United States Code. We have now been informed that the Social Security Administration will not issue certified copies of the award letter. We are thus limited to a physician's letter or the original award. The regular form protects against attachment, seizure or execution of judgement to the extent of One Hundred Thousand Dollars ($100,000) to real property or mobile homes which serves as an individual's principal residence and not with each individual filing as with the elderly. The regular estate of homestead may be established only in one name, but title to the premises may be in several names.
2. FILLING OUT THE HOMESTEAD FORM
The homestead asks for basic information. You have to fill in your name, address & specific County. For the description we require the book & page of your deed, (which you can obtain from the Registry of Deeds, if you do not already have it). You must also have your signature(s) notarized.
3. WHAT IS THE FILING FEE?
Recorded Land filing fee is $10.00 and Registered Land filing fee is $30.
4. WILL DECLARING A HOMESTEAD PROTECT MY HOME FROM BEING TAKEN IF I GO INTO A NURSING HOME?
The short answer is "NO." Liens imposed by the Massachusetts Department of Revenue, as a result of the payment of Medicaid benefits, are exempted from the Homestead protection. However, as long as the recipient, or the spouse of the recipient is alive, the Commonwealth will not, at this time, look to the residence for reimbursement of Medicaid benefits. If the surviving spouse is also the recipient of Medicaid benefits, the Commonwealth will file a claim for the reimbursement from the estate for the entire amount of Medicaid benefits paid, once the surviving recipient has died. The rules and regulations regarding Medicaid can be complicated; for additional information, you should seek competent counsel.
5. DOES FILING A HOMESTEAD REPLACE MY HOME INSURANCE?
NO! The Homestead will only be effective after any liability insurance is used to pay for any judgements that are related to liability incurred under that particular insurance policy: e.g., home, automobile, etc. The homestead should not be used as a substitute for home insurance.
6. SOME EXEMPTIONS FROM THE HOMESTEAD
The following are exempt from the Homestead Law: federal, state and local taxes, assessments, claims and liens; first and second mortgages held by financial institutions or others; any and all debts, encumbrances or contracts existing prior to the filing of the declaration; an execution issued from the Probate Court to enforce its judgement that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children; where buildings on land not owned by the owner of a Homestead estate are attached, levied upon or sold for the ground rent and the lot whereon they stand.
7. ARE MY SPOUSE AND CHILDREN COVERED, SHOULD I PASS AWAY?
YES. Should the parent who declared the Homestead die, the law protects the house until the youngest unmarried child reaches the age of eighteen (18) and until the surviving spouse dies or remarries.
8. CAN (A) TRUSTEE (S) FILE FOR THE HOMESTEAD PROTECTION
A Declaration of Homestead may be filed by a Trustee of recorded land, but not of registered land. The legal effect of a Declaration of Homestead recorded on Trust property is unclear, however, and an attorney should be consulted.
