When Queen Elizabeth II died, millions around the world mourned her passing. Participating in her state funeral on September 19, along with family members and more than a thousand military personnel, were three special guests: the Queen’s pony, Emma, and her two dogs, Muick and Sandy. The Corgis were the last of more than thirty owned by the Queen since she ascended to the throne in 1952. After much media speculation about who would inherit the dogs, news broke that they were taken in by Sarah, Duchess of York, the late Queen’s former daughter-in-law. Judging by Fergie’s recent Instagram post, the dogs are living quite well, thank you.
If you have a beloved pet, you may wish to take inspiration from the Queen. You’ve worked hard to provide for yourself and for all the members of your household, be they your spouse, partner, siblings, parents, or pets. Because it would be ill advised—not to mention of dubious legality—to leave all your money to your dachshund Otto, you might consider establishing a Pet Trust in order to ensure that Otto continues to live well following your passing.
What is a trust? When do you need a trust?
A trust is a legal arrangement where one person holds title to certain property, subject to an obligation to keep or use the property. It requires trust principal (the property being held), a beneficiary (the person for whose support the principal is to be used), and a Trustee (the person who holds legal title to the principal). You may consider employing a trust in a variety of estate planning situations, such as to protect a minor or provide for a person with special needs. Massachusetts Trusts are governed by Massachusetts General Laws 203E, the Uniform Trust Code (MUTC).
A trust need not be limited to a single beneficiary. The trust may be used to benefit a class of people, such as your descendants. Or it may benefit a charity instead of a class of people.
Does Massachusetts law allow pets to be trust beneficiaries?
In 2011, Massachusetts enacted a law that deviated from the common law rule that animals could not be trust beneficiaries. For most legal purposes, pets were and still are classified as personal property: They can be transferred from one party to another in a divorce, can be given in wills, litigated over, collateralized, and repossessed. Unlike other personal property, however, animals now can also be trust beneficiaries. Thus, you may allocate certain property to a Trustee to be used for the benefit of your pet after death, and the Trustee is legally obligated to carry out your wishes.
Depending on how much money you allocate, and given that your pets will be unable to articulate their own needs, you might consider having multiple Trustees involved in your pet’s care. For example, you may have one person serve as Trustee to hold title to the pet, a second Trustee to serve as Caregiver, and a third Trustee, such as a veterinarian, to act as a trust “Enforcer,” a person who has the power to petition a court to enforce the terms of the trust or, in extreme cases, to remove or replace a Trustee.
There is no limit to the dollar value of the property held in trust for the benefit of people or charities. Under Massachusetts law, however, a court may reduce the amount of property held by a Pet Trust if it determines (a) that the property in question both “substantially exceeds” the amount required for the intended use and (b) that reducing the amount would not substantially impact the animal’s care. Consider Leona Helmsley, the New York hotel magnate who tried to leave $12 million to her Maltese, named Trouble, upon Ms. Helmsley’s death in 2007. Employing an analogous statute, a judge reduced the amount to “only” $2 million.
What if I outlive my pet?
Chances are that you will outlive your pet and will subsequently get one or more other pets. You may not have the time or desire to amend your trust with every new pet you acquire. Fortunately, you can plan for that contingency by listing the beneficiaries in terms such as “my cats, Mozart and Beethoven, and any other companion animals I may own at the time of my death.” But you should avoid an overbroad description. Take, for example, Hahn v. Estate of Stange, in which a Texas court ruled that “all my cats” was too vague a description and caused the trust to fail. Massachusetts courts have yet to rule on the contours of acceptable beneficiary designations, but we are capable of drafting pet trust beneficiary language that is flexible and sufficiently specific.
There’s another important limitation on Pet Trusts. A normal trust may provide for the support of beneficiaries who have not been born at the time of your death, such as your children’s future children. Under Massachusetts law, however, a Pet Trust may only be used to care for an animal that is alive at the time of your death. Thus, for example, a Pet Trust cannot be used to care for a litter of puppies born after your death.
Whatever you choose to include in your Pet Trust, it is essential to name reliable people who are willing to serve as trustees and who will attend to your affairs as you intended, after you’re gone.
The lesson here? A Pet Trust can be an important piece of the estate planning puzzle, but these conversations should start now. Have an intended caretaker in mind; make sure that he or she understands the scope of what you are asking; and draw up detailed documents outlining your wishes for the care of your pet. Have contingency plans in case your first choice becomes unable or unwilling to serve. Finally, make sure you have a capable professional draft your documents and help you make the critical decisions. For all your needs in preparing your estate plan, my colleagues at Mountain Dearborn and I will be happy to help.