Massachusetts pet trusts go into effect April 7

Issue March 2011 By Gabriel Cheong

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. He is also a Law Practice Management Section council member.