Winstead Law


An ongoing discussion of current issues in the law

What will happen to your pets if something happens to you?

When you prepare an estate plan, you are thinking about how you will remember and care for the loved ones you leave behind.  For most pet owners, our animals are members of the family, and we would want do whatever we can to keep them happy and comfortable after we are gone.  But the law views pets as property, and thus treats animals much differently than people in these situations.  The all-too-common result is that animals not quickly re-homed are often euthanized or live out their days in a shelter.  This is a tragedy, but it can often be avoided with a little planning while you are creating your estate plan.

Good: The Promise to Care for your Pets

Of course, you can make an informal agreement with a family member, friend or neighbor to take in your pet and hope that he or she will follow through and honor their promise.  The problem with this method, of course, is that it is not binding and may leave you with a false sense of security in the event something happens to you.

Better: A Will May Work

In Massachusetts, since pets are ‘personal property’, you cannot give an outright gift to a pet in a will.  You can, however, leave a sum of money and the animal itself to an individual you name with instructions for how to care for the animal.  Keep in mind, though, that since your pet is considered ‘personal property’, you cannot obligate the person you name to use the money as you intended, and you are relying upon their good faith.  Additionally, since a will must be probated to be effective, there will inevitably be a significant delay of weeks to months while that is happening, and in the meantime the question of who keeps the animal and how it is cared for may be unanswered.

Best: A Massachusetts Pet Trust

In 2011, the Massachusetts legislature recognized that pets play a critical role in our lives, and passed the Pet Trust Act, a bill allowing pet owners to provide for their pets in a binding way.  The new Uniform Trust Code in Massachusetts, General Laws chapter 203E §408, states that a trust may be created for the care of any animals that were living during the lifetime of the person who created the trust.  In general, such a trust would terminate upon the death of the last living animal being provided for in the trust.

So, you can now set up or include in an existing revocable trust a provision for your pet.  In that document, you can:

·         provide who will be the trustee;

·         name the caretaker of the pet;

·         designate funds for the care of your pet; and even

·         appoint a monitor to ensure that the trustee and caretaker are looking after the pet’s best interests. 

You can provide as much detail as you desire regarding the use of those funds.  You can specify a dollar amount, or a percentage of your estate for the care of your pet and designate who will receive the leftover funds at the end of your pet’s life.  Also, unlike a Will which only becomes enforceable after your death, a Trust can be effective immediately, and so you can protect your pets in the event that you are still alive but have become disabled or too infirm to do so yourself.

But the utility of the Pet Trust does have its limitations.  As mentioned above, it can only be used for animals living while you are alive – in other words, your personal pets.  For another, if you decide you love your pet more than human family members, a court can hear a challenge to the amount of the trust, and if it “substantially exceeds” the amount the court determines necessary for the animal’s care, maintenance, health and appearance, a judge can reduce the amount so long as it has no “substantial adverse impact” on those considerations.  The remainder would then go to whomever you designated to receive the residual, or through your estate.

Talk to a qualified estate planning attorney to help you ensure for the comfort of your pets when you are no longer here.

Martin Winstead