Legal Question in Wills and Trusts in California

Technically it is not a homestead if you don't reside there.

It must be noted that a homestead declaration does not have to be recorded to claim a homestead exemption. �Whether or not a homestead declaration has been recorded: (a) Nothing in this article affects the right of levy pursuant to a writ of execution. (b) Any levy pursuant to a writ of execution on a dwelling (as defined in Section 704.710) and the sale pursuant thereto shall be made in compliance with Article 4 (commencing with Section 704.710) and the judgment debtor and the judgment creditor shall have all the rights and benefits provided by that article.� (Code of Civ. Proc., � 704.970.)

With that said, a recorded homestead does extend several protections to the declared homestead. A declared homestead limits the extent to which a subsequently recorded judgment lien, other than a judgment lien based on a judgment for child or spousal support, will attach to the declared homestead. When there is a declared homestead, a judgment lien will attach only to the surplus value of the property over the amount of the homestead exemption set forth in Code of Civil Procedure section 704.730 plus the amount of all liens and encumbrances on the declared homestead at the time the abstract of judgment is recorded to create the judgment lien. (Code of Civ. Proc., � 704.950.)

Recordation of a declared homestead also provides an advantage for a judgment debtor at any future hearing in which a judgment creditor seeks to challenge the existence or amount of a homestead exemption in that the judgment creditor has the burden of proof at the hearing. (Code of Civ. Proc., � 704.780 subd. (a)(1).) If no declaration was recorded, the burden would be on the judgment debtor to prove that the property sought to be levied was the homestead.

Finally, and importantly, if a homestead declaration is recorded prior to the operative date of any amendment to Code of Civil Procedure section 704.730 that increases the amount of the homestead exemption, the amount of a declared homestead exemption is increased by the same amount. If a judgment creditor has obtained a lien on a declared homestead prior to the operative date of any amendment increasing the exemption amount, the amount of the declared homestead exemption remains the amount in effect at the time the lien attached. (Code of Civ. Proc., � 704.965.)