A Further Look Into the Declared and Automatic Homestead

Updated on July 6, 2022

A couple of weeks ago, we wrote a blog on what the Purpose of a Homestead was, which was part one of the Homestead series. This is part two of the two-part information series regarding the homestead.  The first part served as a general introduction to homestead, and briefly covered the topic of the automatic exemptions and the declared exemptions in a homestead.

This second part gets into the exemption amounts and some of the key differences between the automatic homestead and the declared homestead.

Exemption Amount

Whether you elect to declare a homestead or you take rights under the automatic homestead, pursuant to California Code of Civil Procedure § 704.730 the homestead exemption amounts are as follows:

                                       

Declared Homesteads and Automatic Homestead

A declared homestead status arises when the declaration is properly drafted and recorded. (See C.C.P. §§ 704.910 & 704.920.)  On the other hand, the automatic homestead requires the following:

1. The judgment debtor must reside in the dwelling in question when the creditor-judgment lien attaches, and thereafter.
2. The judgment debtor must continuously reside in the dwelling until the date the court determines that the dwelling is a homestead.

(See C.C.P.§ 704.710(c).) Thus, the declared homestead protects the homeowner even if the homeowner moves. (C.C.P.§ 704.920.)  The automatic homestead does not have the same flexibility. (See C.C.P.§ 704.710(c).) Other differences between the declared and homestead exemptions include:

1. In the event of a voluntary sale, the declared homestead protects the sale proceeds up to the applicable statutory amount. In contrast, the automatic homestead offers no protection from a voluntary sale. Thus, if you voluntarily sell your home without declaring a homestead, depending on the judgment amount, there is a possibility that the judgment creditor will receive all of the proceeds.  (See C.C.P.§§ 704.960.)  For the automatic homestead protections to apply there must be a  forced sale of the dwelling.
2. Unlike the automatic homestead, the protections of a declared homestead survive the death of the declared homestead if, at the time of the death, the dwelling was the principal dwelling of one or more of the following persons to whom all or part of the interest of the deceased declared homestead owner passes.

a. The surviving spouse of the decedent.

b. A member of the family of the decedent.

If you are interested in declaring a homestead a good place to start is by reviewing the requirements of C.C.P. § 704.930. Our real estate attorneys at Schorr Law have a great deal of experience with real estate matters and disputes. To see if you qualify for a free 30-minute consultation, contact Los Angeles probate litigation lawyer today. Text: (310) 706-2265 | Call: (310) 954-1877 | Email: [email protected] | Send us a Message!

By Randy Aguirre, Esq.