History: In the past “pets” were treated as “chattel” or possessions under the law. This was because they were viewed as necessary to aid us in our lifestyles. They had to “work for a living.” Dogs herded sheep; cats kept the rat population down; and horses and donkeys were means of transport, and beasts of burden. But no longer. During the 19th, 20th and 21st centuries people began to mechanize some of the pet “services” and all sorts of animals became members of our families. The close interaction of humans and animals enabled people to study their animals and identify them as “sentient” beings, deserving of care and love at all times. Even after their “owners” pass on.
In Massachusetts this change in attitude towards our pets was codified under M.G.L.A . 203E Sec, 408. This statute more popularly known as “the pet trust statute,” was enacted in 2011.
The question of what happens to our beloved animals after we die became a serious one in the face of massive euthanasia of animals who had been devoted members of our families, sometimes for years. They had done nothing wrong except be in a family that could no longer care for them, when their primary caregiver passed away or was otherwise unable to keep a pet. ASPCA reports each year, approximately 920,000 shelter animals are euthanized (390,000 dogs and 530,000 cats). Interestingly enough, the number of dogs and cats euthanized in U.S. shelters annually has declined from approximately 2.6 million in 2011, the same year of passage of the Massachusetts Pet Trust statute.
So, what is a pet trust? A pet trust is a legally enforceable document that specifies how your pet will be taken care of upon your death or disability. As the pet owner, you are the “grantor” of the Pet Trust; the Trustee you appoint manages the pet trust for the benefit of your pet; and the named Caretaker is the person who will actually care for your pet.
The statute came about largely because “willing” your animal to someone directly became problematic. Before the statute was enacted, well intentioned people left a pet with money for the pet, in their wills. Sometimes untoward things happened. Prior 2011, I had a client who left her dog and some money to a “trusted relative.” The dog and money were duly picked up by the relative. Within a week the dog was no longer with us, and the relative benefited by inheriting an unjustified $40,000.
How does a Pet Trust protect your pet?
A pet trust can include details regarding the care of your pet from the name of its preferred veterinarian to its diet, or medical conditions. If there is more than one pet, the trust may specify that these animals must be kept together. And the trust may list the expenditures that you believe are appropriate for the pet. For example, I have two cats. They both need vaccinations, annual physicals, and claws clipped. NO declawing allowed. My two “house panthers” have different personalities, and I would want the caregiver to consider Eli’s shyness, and Joey’s issues with being locked in or out of any place. Neither travels well, so a caretaker needs to be able to provide for their care while the caregiver travels. Thus, funds may be provided for an extra caretaker while the appointed caretaker takes a vacation!
Is it complicated to create a Pet Trust?
In Massachusetts pet trusts are governed by statute. Admittedly, it is difficult to create a pet trust without the help of an attorney who is familiar with Massachusetts pet trusts.
What considerations do I need to make to establish a Pet Trust?
There are two major ones:
First consider who your pet’s caretaker will be if you die or are disabled. The caretaker is similar to a custodian and that person has physical custody of the pet. You should consider appointing a successor to your caretaker in case of illness or if there is any other reason why your appointed caretaker can no longer care for your pet.
A second consideration is how much money may be required to care for your pet. A pet trust enables you to set aside a sum certain for the purpose of caring for your animal during the course of its life expectancy. Also consider that an older animal may require more care than a younger one. The Trustee of your trust will have charge of the money and will also be charged with ensuring your pet is cared for.
During the course of my studies on pet trusts, I came across a California story about the abuse of a pet trust. A black cat was assigned to the care of a housekeeper who served her decedent during her lifetime. Each year the Trustee would visit the caretaker to ensure that the cat was cared for and to get a caretaker report as well as give the caretaker money for this black cat. This went on for many years, until the Trustee finally got suspicious. It turned out that when the first black cat died, the housekeeper replaced it with another black cat each time the previous cat died. So, beware of the caretaker and trustee you choose. The caretaker needs to be honest, and the trustee needs to understand that different animals have different personalities and that no two look alike! A good solution to this problem would have been if the prior owner had properly identified her pet. Both of my cats are chipped, and the chip may be “read” by a vet. Thus, ensuring if either animal were lost there could be no replacement such as that which occurred in California.
Under the Massachusetts statute (Sec. 408 (c)) a court may reduce the amount of property held by the trust if the court determines that the amount substantially exceeds the amount required for the intended use and the court finds there will be no substantial impact in the care, maintenance, health or appearance of the covered animal. The amount of the reduction shall pass as unexpended trust property….”
What happens to left over cash in the trust after the death of my pet?
Upon the death of the last of your pets to survive, the trust terminates and any funds remaining will go to named “remainder” beneficiaries. A word to the wise, don’t name the trustee or caretaker, because then they might be tempted to shortchange your pet by saving the money for themselves. A charitable organization is a good bet. If you name an individual as a remainder beneficiary, they could challenge the amount of funds allocated to your pets’ care, in their own self-interest under the guise of “being an interested party” asking the court to reduce allocations to the animals under the Massachusetts Pet Trust Statute.
To conclude, the Massachusetts Pet Trust is one of many types of trusts that we use to help our clients gain speedy access to assets in the instance of death or incapacity. One of the best general use of trusts is to avoid probate and ensure privacy. A trust does not have to be filed in court in the way we file a probate. And the trust can serve as a will enabling you to distribute your property (held in the trust) after death.
