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Legal Insider - The NEW Massachusetts Homestead Law

 

Atty. Judy Field

 

Did you know about the Homestead Law? This law effects every homeowner and these changes are effective in just a few days.

For a thirty-five dollar filing fee, Massachusetts homeowners have the ability to protect their principle residence from the claims of certain creditors up to $500,000.00.  Until recently, this protection was only available to homeowners who prepared and filed a "Homestead Declaration" with the Registry of Deeds.  On December 16, 2010, Governor Patrick signed into law the most extensive changes to our homestead law in more than a generation ("The Act"). The Act (Chapter 395 of the Acts of 2010, rewriting M.G.L.c. 188) allows homeowners to choose between Automatic Homesteads, created without a declaration, and Declared Homesteads, available only when the homestead declaration is recorded.  It is important to stress the Automatic Homesteads allow protection up to only $125,000.00 versus the Declared Homesteads allowing protection up to $500,000.00. Key difference!

The new law effective March 16, 2011 amends and clarifies the Homestead Act in some of the following ways:

  • All Massachusetts homeowners will receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence, without the need to prepare or record a declaration.
  • All Massachusetts homeowners having "declared homestead exemption" by filing a declaration of homestead at the registry of deeds will continue to be eligible for the $500,000.00 protection.
  • Same-sex married couples have the same rights and protections as are afforded all "married spouses" under the Homestead Act.
  • Homesteads protection will be available for 2-4 family homes.
  • Homesteads protection will be available for homes in trust  if a beneficiary of a trust that takes title to a home intends to occupy the home as his/her principal place of residence, the protection under the statute extends to the beneficiary (although the trust beneficiary must be identified in the homestead declaration as the beneficiary of the homestead).
  • If a single homeowner subsequently marries, the spouse becomes entitled to the benefits of the homestead automatically. 
  • Homesteads now pass on to the surviving spouse and children who live in the home.  Again, married same-sex couples are considered "spouses" for the purposes of the Homestead Act.
  • You do not have to re-file a homestead after a refinance.  Under the new law, homesteads are automatically subordinate to mortgages, and lenders are specifically prohibited from having borrowers waive or release a homestead.
  • The Act imposes a duty on closing attorneys or settlement agents in all mortgage transactions to provide the mortgagor with the notice of the right to declare a homestead.

 Legal Insider Content Contributed by Attorney Judy A. Field. Contact Atty. Field at judy@judyafieldlaw.com.

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