What is Homestead Protection in Probate Law?

Homestead protection is a term commonly seen in probate cases. However, most people don’t know what the word means. Homestead property refers to the main property where an individual lives, also referred to as primary residence. In most states, homestead protection laws help individuals who reside on a property that was not left to them after the owner died.

While other assets and secondary properties aren’t typically protected by law, homestead properties follow a separate set of regulations.


Let’s take a closer look at homestead protection and how beneficiaries can handle assets covered by these laws.


What Is Homestead Protection?


When the owner of a property dies without a will, most properties are passed directly to the person’s living spouse and other bloodline descendants. In some estate plans, individuals include homestead protection. In others, it’s written in by law.


When an individual dies, homestead protection protects the beneficiary’s primary residence from being forcibly sold because of overdue debts. Essentially, the protection is responsible for keeping beneficiaries from having to sell the estate’s real estate assets to handle any debts that aren’t covered by the other financial assets of the estate. This includes:


  • Mortgage Debts
  • Creditor obligations
  • State, property, and IRS taxes
  • Liens from homeowners association dues


While the homestead protection covers most individuals from selling the property to handle these debts, it doesn’t always mean that the debts will be forgiven. That’s where a reliable probate attorney can help you navigate the rights you have as a beneficiary.


Basic Rules of Homestead Protection


There are some basic rules for homestead protection that need to be fulfilled for it to be valid. The most common include:


  • The property owner needs to be a naturalized citizen
  • The homestead property needs to meet the standard needs for size and property type
  • The new owner should have made or wants to make the property a permanent residence for themselves or their family


Protecting your primary residence during the probate process is one of the most important things to consider. The last thing you want to do as you grieve the death of your loved one is to be forced out of your home. That’s why it’s always recommended to hire a probate attorney. They will file a petition with the probate court, giving formal notice to all creditors. Once the assets of your deceased loved one’s estate have been distributed to creditors, your attorney will be able to help you if there isn’t sufficient money to cover all debts.


To file the petition, you’ll need the right legal documentation. This includes:


  • Death certificate with all vital information including date of death and the deceased’s basic identifying information
  • Full name of living direct descendants including identifying information for proof of relationships of spouses and minor children
  • Any other supportive facts that will help during the probate process
  • Legal documentation regarding the homestead property and proof of petitioning parties’ primary residence at that property

If you need help with the estate planning process or recently lost a loved one, Ensberg Law Group is the reliable, compassionate Diamond Bar estate planning attorneys for the job. Contact us today to schedule a free consultation to discuss your needs.