In Massachusetts, an estate of Homestead is an interest in real property designed to protect the possession and enjoyment of the owner or owner's surviving spouse and dependent children against the claims of creditors by protecting the property from execution and forced sale, so long as such person occupies or intends to occupy such property as his or her principal place of residence. There are two entirely separate estates of Homestead:

The first type is generally referred to as a "regular Homestead."

This Homestead has a value of $500,000.00 and may be declared by an owner of a home for the benefit of his or her family. For the purposes of the Homestead law the word "family" includes a parent and child or children, a husband and wife and their children, if any, or a sole owner. The property must be occupied as a principal residence.

The second type of Homestead is the elderly or disabled person Homestead.

It is available to people sixty-two (62) years of age or older and disabled persons who meet the requirements of the statute. This Homestead has a value of $500,000.00 per person and may be declared by both spouses. It applies to the individual, not the family. This means if a husband declares a Homestead, the Homestead protection ends at the death of the husband and does not pass to the wife.

What does the Homestead do?

Upon filing a Declaration of Homestead the real property that serves as an individual's principal residence is protected against attachment, levy on execution and sale for payment of debts for legacies, to satisfy non-exempted debts, to the extent of Five Hundred Thousand Dollars ($500,000.00) for a regular Homestead. For an elderly or disabled person Homestead the same protection applies up to Five Hundred Thousand Dollars ($500,000.00).

What debts are not protected by a Homestead Declaration?

The following are exempt from Homestead protection: federal, state and local taxes, assessments, claims and liens; first and second mortgages held by financial institutions and others; any and all debts, encumbrances or contracts existing prior to the filing of the declaration of Homestead; an execution issued from the probate court to enforce its judgment that a spouse pay 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 of the lot whereon they stand.

What does the Homestead Law mean by a disabled person?

A disabled person is defined as an individual who has any medically determinable permanent physical or mental impairment that would meet the disability requirement of supplemental social security. You must attach to the Homestead form a certified copy of a disability letter issued by the United States Social Security Administration, or a letter signed by a licensed physician registered with the Massachusetts Board of Registration in Medicine that states that you are disabled.

When I turn 62 do I have to record a new Homestead to get the $500,000.00 protection?

Yes. Your spouse is also eligible to declare a Homestead when he/she reaches age 62.

Is the amount of the Homestead calculated from the base value of the real estate or the equity above the mortgage or prior liens?

The law is unclear on this issue. Recent court cases suggest that the Homestead applies to the equity above any exempted liens or encumbrances.

Do I have to file a new Homestead every time I re-mortgage or take out a second mortgage or home equity loan?

It depends. The Homestead statute exempts first and second mortgages from Homestead rights, so the chances are that you will not have to re-file. In some cases the mortgage form itself limits the release of Homestead rights to that particular transaction, which negates the necessity of re-filing the Homestead. In other cases, however, the lending institution may require that your Homestead be released prior to refinancing. In that case you would have to re-file.

How much does it cost to record a Homestead?

The fee is $35.00 plus postage.

Can (a) trustee(s) file for Homestead protection?

The Massachusetts Land Court has determined that registered land held in a trust cannot be given Homestead protection. There is no such limitation regarding recorded land.

Will my Homestead protect my home from being taken if I go into a nursing home?

No. Liens imposed by the Massachusetts Department of Transitional Assistance, as a result of payment of Medicaid benefits, are exempt from Homestead protection.