My wife and I are over 62 years of age and we have each recorded a homestead and now we are being advised to transfer the title to our home to a trust. Will that impact our homesteads?

Well, you and your wife are smart to have each filed a homestead. That will protect the equity in your property up to $500,000 for each of you. If you currently hold title to your home as tenants by the entirety, that gives you additional protection because your property cannot be sold by a creditor for a debt owed by one of you. If you both did owe the debt then a creditor could reach your property. By transferring the property to the trust you will not have that benefit but if you do own the property in a trust it will make it easier for your children to deal with the property after you and your wife are both gone and it will enable them to avoid the time delay and cost in having to file for probate in order to sell the house. But, back to your question. There are no cases specifically on point as to if you transfer the property to the trust whether your homestead would still be operative. However, if you transfer the title to the trust and specifically reserve in the deed the homesteads created by the recording of the homesteads and specifically reference the book and page at the registry of deeds for each homestead, I believe a court would find that your homestead survived the conveyance to the trust since you continue to own the home as your principal residence and the intent of the statute is to give a homeowner protection against creditors in the equity in their home. The transfer to the trust is simply a mechanism to enable your heirs to be able to deal with your house after you and your wife are gone and was not an intention to abandon or extinguish the homesteads which you and your wife created.

If you have questions about this or any other legal matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.