On Jan. 7, 2010, Gov. Deval Patrick signed into law "An Act
Relative to Trusts for the Care of Animals" which will be codified
in 3C of Chapter 203 of the Massachusetts General Laws. This new
law will take effect on April 7, 2011.
What this law does is essentially bring Massachusetts in line with
the majority of states that allow for trusts to be created for the
benefit of pets. Most states allow pet trusts where the pets
themselves are the beneficiaries. Massachusetts, up to this point,
has not allowed for such a trust.
As a pet owner myself (three rabbits and one dog), this new
legislation puts my worries to rest about who will take care of my
pets and how they will be taken care of. As any pet owner will tell
you, our furry friends are just as much a part of our family as
children, and as such, should be allowed the opportunity to be
included in our estate planning.
In the past, if a pet owner wanted to provide enough money to care
for a pet, they would have to bequest the money to a guardian of
the pet or leave the money in trust. However, the bequest to the
guardian of the pet is outright and does not require the guardian
to use the money to take care of the pet. Similarly, if the money
was left in trust, the beneficiary could not be the pet themselves.
This created a problem, since the courts cannot hold the guardian
accountable for taking care of the pet, and it left pet owners with
a gaping hole in their estate plan.
The new law establishes several guidelines in regards to the
creation of these new pet trusts. Any pet trust created must
terminate upon the death of the animal or animals that it was
created to provide for. If there is a challenge, a probate court
judge may lower the amount of money left in trust for the pet if
the amount is unreasonably large. If the trustee does not do their
duty, then a residual beneficiary of the trust or the guardian of
the pets (if the guardian is not the trustee) may sue the trustee
for breach of a fiduciary duty.
Lastly, pet trusts are exempt from the rule against perpetuities.
This might look strange at first -- why the rule against
perpetuities must be exempt -- but it makes sense if you consider
that some people have pets with a very long lifespan, such as
certain types of turtles.
There will be subsequent changes to this new law to correct
certain errors in the drafting. For example, the new law references
the rule against perpetuities to Chapter 184A rather than the new
Uniform Probate Code at Chapter 190B.
Gabriel Cheong, Esq., owns Infinity Law Group LLC in Quincy, which
focuses on family law, estate planning, bankruptcy and immigration
law. Cheong's areas of practice are in divorce and estate planning.
For more information, visit www.infinlaw.com or www.boston-estate-planning.com. He is also
a Law Practice Management Section