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Im being sued i was in a car acc. should i homestead my home?

Redlands, CA |

i was coming up to a signal light the cars in front of me where stopped i was starting to stop when my foot slipped off the brake pedal and i hit the car in front of me

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Attorney answers 5

Posted

Although it's quite possibly, you need not assume the drivers in front of you will sue you, and even if you do you don't need to assume that your insurance coverage will not take care of them. Give your insurance company notice about the accident if you have not done so already, and discuss your risks with them or the lawyers they assign to the case. If you are at risk for personal liability (above your insurance coverage), then it might pay to consult with a lawyer. I am not sure that you need to do anything formal to "homestead" your home but I defer to those lawyers that know this area of the law better than I do.

Posted

I agree with Mr. Fiol. report this to your carrier. If sued the carrier will appoint and hire an attorney for you. That would be the time to consider any definitive defensie action to rotect property.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

Posted

You need to tender the defense to your insurance carrier.

For purposes of asset protection, it probably makes no difference. There are two types of homesteads in California (automatic and declared).

People who usually need the protection of a homestead are either judgment debtors who are claiming an exemption to prevent their home from being sold in an execution sale to pay off a judgment, or are filing for bankruptcy. The amount of a homestead exemption is determined by California Code of Civil Procedure section 704.730, and can be either $75,000, $100,000 (if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor), or $175,000 (if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead either 65 years of age or older, or is physically or mentally disabled).

First, a declaration of homestead may be recorded. (Code Civ. Proc., § 704.920.) A recorded homestead protects the property from execution by certain creditors to the extent of the amount of the homestead exemption. A "declared homestead" is defined as that dwelling described in a homestead declaration. (Code Civ. Proc., § 704.910). Code of Civil Procedure section 704.960 (a) provides that if a declared homestead is voluntarily sold, the proceeds of sale are exempt in the amount provided by Section 704.730 for a period of six months after the date of sale.

Secondly, because many California judgment debtors failed to (or simply did not know that they had to) record a declaration of homestead exemption, the California State Legislature in 1974 created an "automatic" homestead exemption. (Code of Civil Procedure § 704.720.) This automatic homestead exemption need not be memorialized in a recorded homestead declaration in order to be effective. (However, as discussed below, the automatic exemption only provides protection from a forced execution sale).

The two exemptions are distinct protections and operate differently. The declared homestead provides greater rights than the automatic homestead. The declared homestead provides protection from a voluntary sale. Judgment liens only attach to the equity in excess of consensual liens and the protections of the declared homestead survive the death of the homestead owner. The proceeds from a voluntary sale may be reinvested within six months, thus allowing the debtor to invest in another residence. In comparison, the automatic homestead only entitles the debtor to protection from a forced execution sale.

California Code of Civil Procedure section 704.960 (a) provides that if a declared homestead is voluntarily sold, the proceeds of sale are exempt in the amount provided by Section 704.730 for a period of six months after the date of sale. California Code of Civil Procedure section 704.960 (b) provides that if the proceeds of a declared homestead are invested in a new dwelling within six months after the date of a voluntary sale or within six months after proceeds of an execution sale or of insurance or other indemnification for damage or destruction are received, the new dwelling may be selected as a declared homestead by recording a homestead declaration within the applicable six-month period. In such case, the homestead declaration has the same effect as if it had been recorded at the time the prior homestead declaration was recorded. Finally, note that you cannot homestead nor do you have an "automatic" homestead exemption in a house that is not your primary residence.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

Posted

Report it to your insurance company to resolve.

Posted

The short answer is that you need to report this to your insurance carrier. If you don't have insurance, then you need to contact an attorney immediately to advise you accordingly. Best of luck.

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