Pet Trusts

November 27, 2018

courtesy of NAELA News:

Brian F. Mahoney, Esq.

By Brian F. Mahoney, Esq.

A pet trust, if written with care, can ensure the pet owner’s wishes for his or her pet are kept.

Pets are beloved and cherished and over time they become part of the family. This is especially true among seniors or people with disabilities whose pets or service dogs can become daily lifetime companions. Some of your clients will want to make provisions for the care of their pets. Since a beloved animal’s life and lifestyle is at risk and because money is involved, your client should take this very seriously.

A pet trust, if written with care, can make sure the pet owner’s wishes for his or her pet are kept.

I practice in Massachusetts, and pet trust laws vary by state.1 The Massachusetts statute has the following important limitations:

• Except as otherwise expressly provided in the trust instrument, no portion of the principal or income shall be converted to the use of the trustee, other than reasonable trustee fees and expenses of administration, or to any use other than for the benefit of covered animals.2
• A court may reduce the amount of property held by the trust if it determines that the amount substantially exceeds the amount required for the intended use and the court finds that there will be no substantial adverse impact in the care, maintenance, health, or appearance of the covered animal. The amount of the reduction shall pass as unexpended trust property in accordance with subsection (d).3

Limitations
Most statutes I have reviewed have limitations, so you must meticulously examine your state statute to determine if:

1. There is a limit on how much money you can set aside for a pet.
2. There is a specific time limit on the trust aside from the typical rule against perpetuities. Is the measuring life the animal’s life?
3. You can establish a stand-alone living pet trust, or if it has to be a testamentary trust in the Will.

Considerations When Writing a Pet Trust
I write this article less in regard to black letter law, and more toward how to draft a pet trust that includes many considerations.

Your client will want to establish a record of what the expenses could be and/or how the money would be used. Providing for a pet is expensive. Calculate all costs to determine the appropriate amount of funding required for the expected lifespan of the pet.

The following practical information will be needed in order to structure the pet trust document properly. Whenever possible, calculate a dollar amount that covers the life expectancy of the pet. You will need to know:

• The name and address of the pet.

• A specific description of the pet. Specifically identify the animal by category (dog, cat, pig, horse, etc.), breed, color, and weight (i.e. “… my dog, a 95-pound German Shepherd named Dutch. Please see the attached photo of Dutch taken in the year 2018, incorporated herein by reference).

• The name and address of the pet’s veterinarian and the pet’s health history. You will need information on injuries and illnesses and discuss potentially expensive medical treatment and how it should be handled. For example, some pet owners may love their animal dearly, but might not want to or be able to pay $3,500 for life-saving surgery.

• Include information on regular medications and immunizations including routine protocols for the animal such as tick prevention applications. Will the state law for immunizations be different in the state where the Trustee resides?

• The animal’s diet. What and how much does the pet eat? Feeding even a small animal gets expensive over time. If a 15-pound dog eats $3.50 per day of food, and its life expectancy is 4 years, food costs for four years would exceed $5,000.

• Who are the groomers, walkers, or animal-sitters? Identify them by name and address.

• Living conditions at home/lifestyle. What is the standard of living one wishes to provide for their pet? Is the pet housebound except for daily walks or is the pet outside in a fenced-in yard with a doghouse? If the pet is a housebound dog, how many times a day must the pet be brought outside for its bodily functions? How many walks per day should the pet have? If a dog walker charges $10 per walk for two walks per day, more than $7,000 per year will need to be left just for dog walking.

• The pet’s disposition: If the pet is a snarling, barking, nasty beast, then the Trustee should be instructed to keep that pet away from children or strangers.

• Where will the pet be cared for when the owner dies? Is there a facility where the animal would be sheltered until post death administration of their estate and/or pet trust is completed? What is the current daily rate of that facility? What happens if the Trustee travels once they possess the animal?

• If there are multiple pets, would it be possible for them to be kept together after death of the owner? If not, then you would need separate trusts or separate trust provisions per pet within the same pet trust document.

• Discuss Trustee compensation amounts. In regard to Trustee selection: A pet lover would be great as a Trustee because they would take the owner’s wishes more seriously than one who dislikes or is indifferent to animals. As with a human beneficiary, I tell clients to look for a trustee who is altruistic and will likely do the right thing.

• Shipping impacts the amount of funding needed for the trust. Will the pet need to be shipped to another town or another state where the Trustee resides? We recently called a major airline and were told the estimated rate to send a dog from Boston to California is $271 plus taxes. The animal may need a new kennel/crate. What does that cost?

• Does the Trustee live in another town or state? If so, then all the connections to the animal where it presently lives are relevant only to the extent to calculate estimated future cost for the animal’s shelter, food, medical care, grooming, walking, etc., over the animal’s life span.

• Disposition of a pet after its death. Will there be a burial or cremation?

• Be careful to name remainder beneficiaries.

Make the Trustee Aware of the Trust and Its Contents
In order for the client’s wishes for their pet to be followed, the client should discuss the Pet Trust with their trustee before signing the trust.

A pet trust contains virtually all the considerations inherent in providing for human beneficiaries and more. To be drafted properly, a trust requires a considerable amount of time and effort from the attorney and client. n

Citations
1 The American Society for the Prevention of Cruelty to Animals (ASPCA) website has a list of every state’s statute regarding Pet Trusts. See www.aspca.org/pet-care/pet-planning/pet-trust-laws.

2 M.G.L.A. 203E § 408(b).

3 M.G.L.A. 203E § 408(c).

About the Author
Brian F. Mahoney, Esq., is a member of the NAELA News Editorial board. He has been practicing law in Massachusetts since 1982.