Legal Question in Real Estate Law in California

Homestead Declaration

Hello,

I am wondering if there is any legal way to protect my home from being taken from me, in the event that some sort of personal liability suit were to be brought against me (car accident, personal injury, etc). I own my own outright, and so i'm concerned that in the event that some were to sue me they would be able to take my home.

I have heard that Homestead Declarations may be a means to do this, is that true? Are there any other documents that would be able to do what I described above? A trust?

I realize this is a bit open-ended, but your advice is greatly appreciated.


Asked on 9/14/05, 9:07 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Homestead Declaration

California has two kinds of homsteads; one is automatic, i.e. certain property is exempt from levy, including some equity in your residence; the other requires filing a declaration of homestead, but the additional exemption you get is pretty minimal, so I sometimes advise people who ask whether they should declare homestead that is isn't worthwhile, especially since a newly-filed homestead declaration is a kind of red flag to creditors that trouble is brewing.

In your case, if the issue is not current unpaid debts, but rather, your concern about possible future judgments, filing a homestead declaration might be worth considering. I can't advise one way or the other without more information about your situation.

A revocable trust will not give you any protection. An irrevocable trust might give you worthwhile insulation if well drawn and not a fraud upon present of forseeable creditors, but you must truly relinquish control.

Probably your best bet is insurance. Most homeowner policies include a modest amount of general liability coverage. Ask your agent to explain whether this covers the risks you have in mind and whether the policy limits can be increased; or maybe you need a separate policy.

If your risk exposure comes from a particular activity, shop for specialized insurance; e.g., if you are a dangerous driver, get more auto insurance; if you're a professional, get malpractice insurance; if you own a business, get small-business public-liability coverage, including products liability.

I would also consult with a lawyer with a broad general practice including litigation defense to discuss any particular legal situations that are worrying you.

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Answered on 9/15/05, 2:45 am


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