Montana, like many states, has adopted a homestead system so homeowners can protect their primary residence from creditors. The maximum homestead exemption is $250,000. It applies to the home and other improvements, the land on which the home sits, mobile homes, condos and townhouses. Previously, the homestead protection was limited to $100,000, and if documentation was properly filed to secure the $100,000 protection, a homeowner need not refile to increase the protection to $250,000. Filing for homestead is a simple process, requiring only a few steps. Nevertheless, there are a few scenarios in which homestead protection does not apply, for example a mechanics lien for work done on the property, mortgages and the Medicaid Estate and Recovery Program.
Create a homestead document
Create a homestead declaration document. Montana does not prescribe a particular form or format that must be used to claim the homestead protection. Some Montana county clerk's have created sample forms to follow and you should check with your local county to make sure the document you create is substantially similar to the suggested form. The declaration should include a description of the property, the names of the property owners, a statement that it is the primary residence and a statement that the property qualifies for the homestead protection pursuant to Montana Code Annotated, section 70-32-201.
Sign and date the document before a notary. All owners of the property must sign the homestead declaration. It would be an unusual scenario in which a jointly owned property outside of a marriage would be a primary residence. However, whether jointly owned as spouses or as any other scenario of adults living together, such as a same-sex couple, the property must be the primary residence of all owners and signed by all owners. The form should be dated because the protection may depend on the date of filing. For example, homestead declaration is not affective against bankruptcy unless it was filed before the bankruptcy was filed. The declaration should be signed in the presence of a notary who will notarize the document.
File the declaration of homestead with the county clerk and recorder's office in the county in which the property sits. If a standard form is used, such as that suggested by a county, as of August, 2010, the filing fee is $7, and if a declaration is created by the homeowner, the fee is $11. The homestead protection does not exist until the form is filed, putting creditors and the public on notice of the property's status as a homestead. If circumstances arise such that the homestead claim is no longer valid, for example divorce, the homeowners can file a declaration of abandonment to undo the homestead protection.
- Property law and creditor/debtor law can be complicated, despite how straightforward the homestead declaration seems. This article should only be used for educational purposes and should not be construed as legal advice. Homeowners should consult an attorney licensed in Montana for further information and advice.
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