homestead act q and a
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7/31/2019 Homestead Act Q and A
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William Francis GalvinSecretary o the Commonwealth
updated 10/17/11
Massachusetts General Laws, Ch. 188, 1-10
The Homestead Act
Questionsand
Answers
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William Francis GalvinSecretary o the CommonwealthCitizen Inormation ServiceOne Ashburton Place, Room 1611Boston, MA 02108elephone: (617) 727-7030oll-ree: 1-800-392-6090 (in Mass. only)Y: (617) 878-3889Email: cis@sec.state.ma.usWebsite: www.sec.state.ma.us/cis
Dear Homeowner,
Tis pamphlet has been designed to answer some
o the basic questions asked every day pertaining to
the Homestead Act. Any changes made by the new
Homestead reorm legislation, eective on March 16,
2011, are included. Tis inormation is not designed toprovide any legal advice or address the practical eect
o a estate o Homestead. As in all areas o the law, to
ully understand your rights, you should consult an
attorney o your choice.
I you have any urther questions or concerns about
how the Registry o Deeds can assist you in ling a
declaration o Homestead, please do not hesitate to
contact the Registry o Deeds oce directly. We are
here to serve you.
Sincerely,
William Francis Galvin
Secretary o the Commonwealth
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Te Homestead Act 1
What is a Declaration o
Homestead/Homestead Protection?
An estate o homestead is a type o protection or a
persons principal residence. Tere is an automatic
homestead protection o one hundred and twenty-ve
thousand dollars ($125,000) with respect to a homethat does not declare a homestead exemption with the
Registry o Deeds. Tis automatic protection may be
sucient to protect a deposit made upon the estate;
however, it is not likely to be sucient coverage to
protect the ull value o your home. In order or
homeowners in Massachusetts to protect the value o
their property up to ve hundred thousand dollars
($500,000) per residence, per amily, you must le a
document called a Declaration o Homestead. Te
orm is led at the Registry o Deeds in the county ordistrict where the property is located, reerencing the
title/deed to the property.
Who can le a Homestead protection?
Te owner or owners o a home who occupy or intend
to occupy the home as a principal residence may le
a homestead protection. A sole owner, joint tenant,
tenant by the entirety, tenant in common, lie estate
holder, or holder o a benecial interest in a trust may
all be regarded as owners. With respect to a home
owned by joint tenants or tenants by the entirety, the
homestead exemption remains whole and unallocated
between the owners. I there are more than two (2)
joint tenant owners, there is ability to add an additional
two hundred and ty thousand dollars ($250,000)
to the exemption amount or additional joint tenants
in certain cases. With respect to a home owned by
multiple owners as either tenants in common or as
trust beneciaries, the homestead exemption shall be
distributed among the owners in proportion to each
o their ownership interests. Manuactured or mobilehome owners are also eligible to declare homestead
protection under the provisions o the new statute.
My home is held in trust,
am I entitled to a Homestead protection?
Yes, eective March 16, 2011, a holder o a benecial
interest in trust is considered an owner, eligible or
an estate o homestead. I your home is owned in
trust, only the trustee shall execute a declaration o
homestead on behal o the trusts beneciaries. Te
trust declaration and or trustee certicates may also
need to be recorded at the Registry o Deeds. In the
declaration o homestead, the trustee must identiy eacho the beneciaries to the trust that occupy or intend
to occupy the premises as their principal residence.
Te spouses, i any, o any resident beneciary must
also be identied and each must state whether they
also occupy or intend to occupy the premises as their
principal residence.
Where do I le my Homestead?
Each homestead must be led in the county or district
Registry o Deeds in which the residence is located. o
acquire a homestead or a mobile home, also reerred to
as a manuactured home, you must le at the Registry
o Deeds in which the mobile home is located. Te
Registry o Deeds must le your manuactured home
declaration even though you do not have a deed on
record.
Homestead orms may be obtained at www.sec.state.
ma.us/rod and most Registries o Deeds. Links to
your county or districts website are also available.
Forms are also available at legal stationery stores oryour local attorneys oce. Be sure the orm is lled
out completely and has been properly notarized,
and remember to enclose a check or the thirty ve
dollar ($35.00) recording ee when sending in your
completed orm. Checks should be made payable to
the Commonwealth o Massachusetts.
How am I protected?
Te real property or manuactured home which serves
as an individuals principal residence upon ling a
declaration o homestead shall be protected. A principal
residence is considered to be the primary dwelling
where an owner, and their amily i applicable, reside
or intend to reside. Te declared estate o homestead
shall protect against attachment, seizure, execution on
judgment, levy or sale or the payment o debts to the
extent o ve hundred thousand dollars ($500,000)
per residence, per amily.
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Te declaration o homestead shall benet each owner
named on the homestead and each o the owners amily
members who occupy or intend to occupy the home
as their primary residence. Each amily member shall
have the right to use, occupy and enjoy the home. Te
new law provides additional protections to spouses thatare not listed as owners in their principal residences.
For example, protection extends automatically to a
new spouse where an unmarried person declared a
homestead and later marries. Also, divorcing spouses
are protected against the loss o homestead through
termination or divorce. Neither divorce nor remarriage
will aect the homestead o the spouse who stil l
primarily resides in the home.
How am I protected
i I am 62 or older, or disabled?
Te real property or manuactured home o persons
sixty-two (62) years o age or older or o a disabled
person, regardless o age, shall be protected against
attachment, seizure, execution on judgment, levy or
sale or the payment o debts.
Real property or manuactured homes must serve as
an individuals principal residence and each individual
ling as either elderly or disabled will be eligible or
protection up to a maximum amount o ve hundredthousand dollars ($500,000) regardless o whether
such declaration is led individually or jointly with one
another. Elderly persons, regardless o marital status,
will be personally exempt up to ve hundred thousand
dollars ($500,000) each. I two (2) owners qualiy
or the elderly or disabled homestead protection, the
aggregate protection on the home shall be one million
dollars ($1,000,000).
ake note, each elderly or disabled homestead
protection shall terminate upon the persons death. Ithere are multiple owners and only one qualies or
an elderly or disabled homestead protection, it may be
advisable to le one homestead declaration per owner
in order to protect the amilys right to use, occupy and
enjoy the home. Additionally, i there are dependent
minor children, under the age o 21, living with all
elderly or disabled homeowners, you may wish to
consult an attorney in order to adequately protect the
childrens right to use, occupy and enjoy the home. Be
sure to use the proper homestead orm when you le.
What does the Homestead law
mean by a disabled person?A disabled person is dened as an individual who
has any medically determinable permanent physical
or mental impairment that meets the disability
requirement o supplemental social security income. In
most cases, an individual is considered disabled or
the purpose o this law i he or she cannot engage in
any gainul activity as a result o the physical or mental
impairment.
I you are declaring a homestead to benet a disabled
person, either an original or certied copy o thedisability award letter issued by the United States
Social Security Administration, or a certiication
letter signed by a licensed physician registered with
the Massachusetts Board o Registration in Medicine
must be attached to the homestead orm. Disabled
persons must meet the disability requirements stated
in 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)
(3)(C) as in eect at the time o recording.
Are my spouse and children
covered, should I pass away?
Yes. Should the parent who declares the homestead die,
the law protects the amilys right to use, occupy and
enjoy the home. Married persons, regardless o whether
they both own the home, unmarried individuals and
any minor children under the age o 21 shall all be
protected by the homestead. Te homestead protection
shall continue despite the remarriage o a surviving or
ormer spouse.
I I am over 62 and my spouse isunder 62, should we both le?
Yes. Pursuant to M.G.L. Chapter 188, Section 2(b), an
elderly homestead protection or the individual over
the age o 62 is personal to the qualiying individual
and will terminate upon the transer o their ownership
interest, subsequent declaration o homestead on
another property, abandonment or death. In order
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Te Homestead Act 3
to ensure that the homestead protection does not
terminate unexpectedly or the spouse that is under
the age o 62, one homestead should be led per
owner. Tis is a noteworthy change under the new law.
Under the ormer statute, ling a new declaration o
homestead voided any earlier homestead which couldhave opened up a claim period or previous creditors,
leaving homeowners unprotected or a period o
time. Eective March 16, 2011, a second homestead
declaration shall relate back to the rst declaration,
thereby ensuring that the homeowners maintain their
homestead protection.
When your spouse turns 62 and qualiies or an
elderly homestead protection, you may also consider
iling another elderly homestead on their behal.
I and when you and your spouse both qualiy aselderly, you may aggregate each personal ve hundred
thousand dollar ($500,000) protection to one million
dollar ($1,000,000). In all cases, you may want to
consult an attorney to take any personal matters into
consideration.
Will my Homestead declaration protect my
home rom being taken i I go into a nursing
home?
Liens imposed by the Massachusetts Department o
ransitional Assistance (ormerly Public Welare), as a
result o the payment o Medicaid benets, are exempt
rom the homestead protection. However, as o the
printing o this pamphlet, as long as the recipient, or
the spouse o the recipient, is alive, the Commonwealth
will not look to the residence or reimbursement o
Medicaid benets. I the surviving spouse is also the
recipient o Medicaid benets, the Commonwealth
will le a claim or reimbursement rom the estate or
the entire amount o Medicaid benets paid, once the
surviving recipient has died. Te rules and regulations
regarding Medicaid are complicated and constantly
changing. You should consult an attorney to address
your specic concerns regarding Medicaid.
Is there anything I will not be protected rom?
Te ollowing are exempt rom the homestead law:
a sale or ederal, state and local taxes,
assessments, claims, and liens;
a mortgage on the home;
an execution issued rom the Probate Court
to enorce its judgment that a spouse pay or
the support o a spouse, ormer spouse or
minor children;
where buildings on land not owned by the
owner o a homestead estate are attached,
levied upon or sold or the ground rent o the
lot where they stand;
upon an execution issued rom a court o
competent jurisdiction to enorce its judgment
based upon raud, mistake, duress, undue
infuence or lack o capacity;
a lien on the home recorded prior to the
creation o the homestead.
What happens to my Homestead i I should
re-mortgage or take out a second mortgage or
home equity loan?
An es tate o homestead shal l be automatically
subordinate to a mortgage on the home that is executed
by all o the homes owners. For homeowners that have
previously executed a mortgage that included a waivero the homestead protection, the new law applies to the
existing homestead. Tis waiver shall be treated as a
subordination and the previously recorded homestead
shall be in ull orce and eect. As a result, there is no
immediate need to le a new homestead declaration
ater you renance, take out a second mortgage or a
home equity loan. Although it is not necessary, it may
be advisable in certain circumstances. Under the new
law, you can le a new declaration without injury
because the subsequent declaration shall relate back
to the previous declaration.
Where there are multiple owners, i a mortgage is
executed by ewer than all o the owners it shall still
be subject to the estate o homestead and shall be
considered superior only to the homestead estate o
those owners who are parties to the new mortgage,
their spouses and minor children, i any. Te homestead
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Te Homestead Act 4
protections o those owners who were not parties to
the new mortgage shall remain intact.
I I divide my time equally between my winter
and summer residences, can I declare a
Homestead on both?
No. A homestead can be declared only on an applicants
principal residence. A person can have more than one
residence but the statute only allows the protection on
ones primary dwelling. Tere is no legislative intent to
allow the exemption to apply to a vacation home that is
not principal residence. For example, a husband cannot
declare a homestead exemption on one residence while
his wie declares the exemption on another amily
residence, unless each can prove that the residence is
their principal residence. I a homestead declaration is
led or a vacation home and it is not your principal
residence or you do not intend to reside in it as your
primary dwelling, no protections shall apply. Also,
the subsequent homestead on the vacation home shall
terminate a prior homestead on an actual principal
residence.
Does the Homestead protection
take the place o home insurance?
Absolutely not! Te homestead protection is not a
substitute or home insurance or any other type oliability insurance. Tese are separate and distinct
types o protection. Te homestead protection will
be eective ater any liability insurance is used to pay
or any judgments that are related to liability incurred
under that particular insurance policy (e.g. home,
automobile, etc.).
What i my home is sold or damaged?
I the home is sold, the sale proceeds shall be protected
by the homestead or one (1) year ater the date o thesale or on the date when a new home is purchased
with the proceeds, which ever is earlier. I the home is
damaged by a re, or example, the insurance proceeds
are protected or two (2) years ater the date o the re
or on the date when the home is reconstructed or a
new home is purchased, which ever is earlier. Pursuant
to M.G.L. Chapter 188, Section 11(b), temporary
occupation o a trailer, manuactured home or other
temporary housing shall not be considered a principal
residency during the reconstruction or replacement
o the home. Proceeds do not need to be kept in an
escrow account in order to be aorded a homestead
protection, although, it is advisable to consult with anattorney as escrow may provide other advantages. Any
excess proceeds shall lose their homestead protection
ater reconstruction or when a new home is purchased.
How does the Homestead declaration help
protect a home against unsecured creditors in
bankruptcy proceedings?
Remember that the homestead declaration protects
a homeowner rom unsecured creditors and certain
other debts or attachments. It will not oer protection
rom rst or second mortgage lenders and/or equity
lenders who possess a security interest in a home. I
payments are not current on these types o secured
credit, a homeowner runs the risk o losing the home
to oreclosure proceedings.
In a Chapter 7 bankruptcy, or asset liquidation
proceeding, a homeowner is allowed to claim certain
exemptions which unction as asset protection
allowances. I a homestead declaration is in place,
and the state homestead exemptions are claimed, a
homeowner would be allowed to retain a much greater
portion o the proceeds rom a liquidations sale o
the home than s/he would be allowed to keep under
ederal bankruptcy law exemptions. Tis actor in turn
decreases, or perhaps even eliminates, the possibility
that the homeowner would be required to sell his/her
home as part o Chapter 7 proceedings.
In all Chapter 13 bankruptcy proceedings, the court
will require a homeowner to repay some or all o the
unsecured debt over a three- to ve-year period. Youwill be required to repay a percentage o that debt
at least equal to that which the unsecured creditors
would receive were a homeowner required to proceed
under Chapter 7 liquidation regulations. By increasing
the amount o the homes exemption, the homestead
declaration decreases the proceeds which would
become available or repaying unsecured creditors
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Te Homestead Act 5
through the Chapter 7 alternative. Tis may decrease
the percentage o the unsecured debt the homeowner
would be required to repay through a Chapter 13
proposal.
Where can additional inormation be obtainedabout bankruptcy issues as they apply to
Homestead protection?
his inormation can be discussed with qualiied
counselors rom the Consumer Credit Counseling
Service, a private non-prot agency with chapters
nationwide. In Massachusetts, contact the Consumer
Credit Counseling Service o Southern New England
(CCCS/SNE) at: (800) 208-2227. CCCS/SNE is a
part o Money Management International and makes
up the largest non prot, ull service credit counseling
agency in the United States. Since 1958, they have
helped consumers nd the tools and solutions they
need to achieve nancial independence. You can also
visit their website at: www.moneymanagement.org.
Is the Homestead orm difcult
to understand and ll out?
No. It simply asks or basic inormation. I your
home is held in trust, the trustee(s) must ll out the
orm entitled Declaration o Homestead or Homes
Owned by rustee(s). For all other owners, or naturalpersons, please ll out the orm entitled Declaration
o Homestead or Homes Owned by Natural Persons.
Be careul when writing the book and page number or
certicate o title number o your deed or title. I you
need assistance locating your deed to determine this
inormation, please contact the Registry o Deeds. We
are here to serve you.
Can my Homestead be terminated?
Yes, the estate o homestead may be terminated by anyo the ollowing methods:
i the home is conveyed by deed to a non-
amily member and the deed is signed by the
owner and i applicable, a non-owner spouse
or ormer spouse residing in the home as a
principal residence at the time the deed is
drated;
a recorded release o the homestead is signed
and acknowledged by the owner and i
applicable, a non-owner spouse or ormer
spouse residing in the home at the time o
the release;
abandonment o the home as a principalresidence by the owner, owners spouse, ormer
spouse or minor children, only as they apply
to rights o the persons who abandoned the
home. Military service shall not be considered
abandonment;
i the deed is held in trust, either the trustee or
a benecial owner identied in the homestead
declaration records a termination on the
property held in trust.; or
i a subsequent homestead declaration is made
on another home, such as a vacation home, it
shall terminate a prior homestead on an actual
principal residence.
Please note, there are a number o transers that do not
terminate an already declared homestead. Any transer
o the property between spouses, ormer spouses,
co-owners, a trustee and a beneciary or a lie tenant
and a remainderman will not terminate a previously
declared homestead. Also, i a conveyance or release ismade without the signature and acknowledgement o
a non-owner spouse or ormer spouse who is residing
in the home at the time the principal residence is
conveyed or released by an owner, it shall not aect the
homestead o the spouse who ailed to sign.
What is the ling ee?
Te cost o ling the Declaration o Homestead is
thirty ve dollars ($35.00). Checks should be made
payable to the Commonwealth o Massachusetts. Each
owner, whether or not they qualiy or an elderly or
disabled exemption, must sign and acknowledge the
document under the penalties o perjury beore a
notary public. I the home is owned by two spouses,
the declaration must be executed by both spouses. I
the home is owned by one spouse independently, only
that spouse needs to sign the declaration, however,
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Te Homestead Act 6
they must declare their spouse and state the spouses
name. I there is more than one owner, given that
the tenancy may change, it may be advisable to le
a separate declaration or each tenant. You may wish
to consult an attorney i you have numerous owners.
How can I tell i my real property
is recorded or registered land?
In the large majority o cases your real property is
recorded land. Your evidence o title will be a quitclaim
deed that has a book and page number assigned by the
Registry o Deeds.
I your property is registered land, you will have a
certicate o title number perhaps in addition to a
land registration oce book and page. Instead o a
quitclaim deed, you may have received a certied copy
o your certicate o title. Prior to April 9, 1997, a
large document called an owners duplicate certicate
o title was issued instead. I you are not sure whether
your real property is recorded or registered, contact the
Registry o Deeds.
Chapter 395 o the Acts o 2010 states that all existing
estates o homestead in eect on the eective date o this
Act, March 16, 2011, shall continue in ull orce and eect
notwithstanding the repeal o any law under which they
were created. Additionally, all existing estates o homestead
shall now be governed by this new statute even though the
execution o each does not comply with the new M.G.L.
Chapter 188, Section 5.
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The Commonwealth of MassachusettsWilliam Francis Galvin, Secretary o the Commonwealth
Declaration o Homestead or Homes Ownedby Natural Persons (General Laws Chapter 188)In situations where the home is owned by multiple owners, each owner may
be best served to complete a separate declaration o homestead.
1. I, _______________________________________________________________, (insert name o owner)
We, ______________________________________________________________, (insert name o owners)
_________________________________________________________________,
_________________________________________________________________,
hereby declare homestead pursuant to M.G.L. c.188 and state that I/we own the homedescribed below and occupy or intend to occupy the home as my/our principal residence.
Owner Inormation2. Check all the apply:
I/we, _____________________________________________________________________ am elderly (62 years o age or older) (insert name (s))
I/we, _________________________________________________________________________________________________(insert name (s))
am/are disabled (have a physical or mental impairment that meets the disability requirements or Supplemental Security Incomeunder 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C). One o the ollowing must be attached: 1) an original or certiedcopy o a disability award letter issued to the person by the United States Social Security Administration, or 2) a letter signed by aphysician registered with the board o registration in medicine certiying that each person meets the disability requirements statedin 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C).
I am married to _________________________________________________________________________________________ ,who is not a co-owner o the home but who occupies or intends to occupy the home as his/her principal residence.
Home Inormation
3. Address: ______________________________________________________________________________________ , Massachusetts(street number and name, city/town)
4. Select ONE o the ollowing:
Deed is recorded in __________________________________ Registry o Deeds in ______________ and _______________
(district/county) (book) (page)Certicate o itle _________________ registered in the Land Registration Oce ______________ and _______________
(number) (book) (page)
Inheritance rom _________________________________________________________________________ , Docket number(name o previous owner)
_______________________________________________ in ________________________________________________.(number) (county)
For manuactured homes, license number __________________________________________________________________(number)
Filing Fee $35
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5. I/we, whose names are signed on this document, acknowledge that I/we sign it voluntarily or its stated purpose.
To be signed by Applicant(s) in ront o Notary Public.
Signed under pains and penalties o perjury this
_______________________________________________day o _____________________________________________ , 20 ______.
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
For Use by Notary Public Only:
COMMONWEALTH OF MASSACHUSETTS
_______________________________________________, ss.
________________________________________, 20 ______ , beore me, the undersigned notary public, personally appeared
____________________________________________________________________________________________________,(name(s) o the document signer(s))
proved to me through satisactory evidence o identication, which were ___________________________________________ ,(drivers license, passport, etc.)
to be the person(s) who signed the preceding or attached document in my presence, and who swore or armed to me that the contents othe document are truthul and accurate to the best o (his) (her) (their) knowledge and belie.
Notary Public: ____________________________________________________________________________________________
My commission expires: _____________________________________________________________________________________
Declaration of Homestead for Homes Owned by Natural Persons - Page 2 of 2
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The Commonwealth of MassachusettsWilliam Francis Galvin, Secretary o the Commonwealth
Declaration o Homestead or Homes Ownedby Trustee(s) (General Laws Chapter 188)
1. I, ________________________________________________________ , rustee (insert name o owner)
We, ______________________________________________________________,
(insert name o owners)
__________________________________________________________, rustees
o certain trust _____________________________________________________ (trust name)
_________________________________________________________________,
dated _______________ and recorded________________and________________ (date) (book) (page)
hereby declare homestead pursuant to M.G.L. c.188 and state that I/we own the homedescribed below and which the beneciaries listed herein occupy or intend to occupyas his/her/their principal residence:
Benefciary Inormation2. Enter beneciary name(s): _____________________________________________________________________________________
(insert benefciary name(s))3. Check all that apply and enter beneciary name(s):
________________________________________________________________________is/are elderly (62 years o age or older) (insert benefciary name(s))
_____________________________________________________________________________________________________(insert benefciary name(s))
is/are disabled (have a physical or mental impairment that meets the disability requirements or Supplemental Security Incomeunder 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C). One o the ollowing must be attached: 1) an original or certiedcopy o a disability award letter issued to the person by the United States Social Security Administration, or 2) a letter signed by a
physician registered with the board o registration in medicine certiying that each person meets the disability requirements statedin 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C).
4. For each applicable beneciary, complete one statement. Attach additional page(s) as necessary.
__________________________________________ is married to ________________________________________________who is not a co-owner o the home but who occupies or intends to occupy the home as his/her principal residence.
__________________________________________ is married to ________________________________________________who is not a co-owner o the home but who occupies or intends to occupy the home as his/her principal residence.
Home Inormation
5. Address: ______________________________________________________________________________________ , Massachusetts
(street number and name, city/town)6. Select ONE o the ollowing:
Deed is recorded in __________________________________ Registry o Deeds in ______________ and _______________(district/county) (book) (page)
Certicate o itle _________________ registered in the Land Registration Oce ______________ and _______________(number) (book) (page)
Inheritance rom _________________________________________________________________________ , Docket number(name o previous owner)
_______________________________________________ in ________________________________________________.(number) (county)
For manuactured homes, license number __________________________________________________________________(number)
Filing Fee $35
(over)Declaration of Homestead for Homes Owned by Trustee(s) - Page 1 of 2
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7. I/we, the trustee(s) whose name(s) are signed on this document, acknowledge that I/we sign it voluntarily or its stated purpose.
To be signed by Applicant(s) in ront o Notary Public.
Signed under pains and penalties o perjury this
_______________________________________________day o _____________________________________________ , 20 ______.
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
For Use by Notary Public Only:
COMMONWEALTH OF MASSACHUSETTS
_______________________________________________, ss.
________________________________________, 20 ______ , beore me, the undersigned notary public, personally appeared
____________________________________________________________________________________________________,(name(s) o the document signer(s))
proved to me through satisactory evidence o identication, which were ___________________________________________ ,(drivers license, passport, etc.)
to be the person(s) who signed the preceding or attached document in my presence, and who swore or armed to me that the contents othe document are truthul and accurate to the best o (his) (her) (their) knowledge and belie.
Notary Public: ____________________________________________________________________________________________
My commission expires: _____________________________________________________________________________________
D l ti f H t d f H O d b T t ( ) P 2 f 2
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