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Massachusetts Agencies



Although G.L.c. 188, §1 permits the acquisition of a homestead by "an owner . . . of a home or one or all who rightfully possess the premise (sic) by lease or otherwise," there has always been some doubt in my mind as to whether a declaration of a homestead by a beneficiary of a trust of her equitable interest will be effective. See Thurston v. Maddocks, 88 Mass. 427 (1863). The matter, however, now seems to have been resolved in Assistant Recorded v. Spinelli, 38 Mass.App.Ct 655, 651 N.E.2d 411 (1995), wherein the Appeals Court ruled that a trustee of a trust cannot acquire a homestead even though, as a beneficiary, the trustee is entitled to possession of the property.

Moreover, the statute indicates that although joint owners can declare a homestead only one owner can actually make the declaration.[1]

It appears that a trustee of a trust cannot declare a homestead. Assistant Recorder of North Registry District of Bristol County v. Spinelli, 38 655, 651 N.E.2d 411 (1995).

1 In Dwyer v. Cempellin, 424 Mass. 26, 673 N.E.2d 863 (1996) the court acknowledged the inconsistency of the statute.