Declaration of Homestead

On Friday, December 17, 2010, Massachusetts Governor Deval Patrick signed a new Homestead law.The new Homestead law, scheduled to take effect in 90 days, will not only help homeowners, the new law also removes a lot of confusion surrounding the existing Homestead law.

First, the new law automatically gives every Massachusetts homeowner $125,000.00 of equity protection for their primary residence, even if they never file an actual Declaration of Homestead form at the registry of deeds. If a homeowner does file the Declaration of Homestead, they will be given the full $500,000.00 creditor protection of the equity in their home.

Second, the new law makes clear that a homeowner does not have to file a new Declaration of Homestead every time they refinance their home. This has been an open question prior to the signing of this law.

Third, the new law also makes clear that property held in a revocable trust may be protected by a Declaration of Homestead. This too has been a confusing and uncertain area. In February 2010, the United States Bankruptcy Court for Massachusetts decided In re: Olga M. Rodrigues. This decision found that property held in a revocable trust could be protected by a Declaration of Homestead during a bankruptcy proceeding. However, it remained uncertain whether Massachusetts courts would follow this federal court ruling. The legislature settled this uncertainty with the new Homestead law.

Existing Homesteads are grandfathered under the new law. So if you have already filed a Homestead at the registry of deeds, it should not be necessary to file a new form.