A recently released preliminary study suggests that owning a pet for five or more years may slow cognitive decline in adults 65 years of age or older. As someone who grew up with pets and recognizes the joy, humor, companionship and other benefits that pet ownership provides, that study got me thinking about what could be done to care for the critters that enrich our lives when we become incapacitated or pass away.  To start with, the ASPCA suggests creating a contact list of caretakers and documenting your pet’s food, medication and behaviors for emergency purposes. In addition to those recommendations, here are five ways to include your pets in your estate plan, to make sure they are taken care of if you are not able to do so.

• Memorandum

Your Last Will and Testament directs the distribution of your assets after you pass away, including your pets.  If you have a specific individual you wish to take custody of and care for your pet after you pass, you may list the pet and individual on a Memorandum.  The Memorandum is incorporated by reference into your Will yet permits you to update it if you later get another pet or change your mind about who you would like to care for your pet. 

• Gift for Pet Caretaker

The Will can also include a provision that gives a specific amount of money to the selected pet caretaker in order to assist with anticipated veterinary expenses, food, toys, etc. for your pet. Such gifts are usually small, ranging from $1,000 to $40,000, in my experience, depending on the age of your pet and the pet’s anticipated needs.

• Revocable Living Trust Pet Sub-Trust

If you already have a Revocable Living Trust as part of your estate plan and would like to gift a larger amount of money to your pet’s caretaker but prefer that the funds are managed by someone else, then a simple pet sub-trust as part of your Revocable Living Trust may be a good option. 

Since 2011, residents of Massachusetts have been permitted to create trusts for the benefit of their pets.  The trust is legally binding and must benefit a pet that is alive during the trust creator’s lifetime. There is a manager (Trustee) appointed to administer and distribute the trust money to a separate person who is the pet’s caretaker. The trust describes the purposes for which money may be distributed to the caretaker for the pet’s benefit, such as grooming, training, veterinary care and more. If the amount held in trust is challenged, the court may determine if it is excessive in connection with the needs of the pet, and reduce the amount so long as it will not negatively impact the care, maintenance, health or appearance of the pet. The trust ends at the death of the last surviving pet and directs that the remaining funds, if any, are distributed according to other terms of the trust.

• Stand-Alone Pet Trust

If you are contemplating setting aside hundreds of thousands or millions of dollars to pay for your pet’s expenses because the pet has a long life expectancy or significant health care needs, a stand-alone pet trust may be a better fit for you. But keep in mind that funding the trust with millions of dollars may spell Trouble – as in the pet trust created for Leona Helmsley’s dog, Trouble, who the court determined did not require $12 million dollars to pay for the pup’s lifetime care, and redirected the distribution of a majority of those funds to others. While the stand-alone pet trust must adhere to the same Massachusetts laws mentioned above, it also allows you to include more complex wishes regarding the compensation of the Caretaker and Trustee, and the distributions for your pet’s benefit, such as transportation expenses, boarding, euthanasia and disposition of remains, and more.

• Your Durable Power of Attorney

The above documents address the care of your pet after your passing, but what if you are alive and can no longer care for your pet yourself due to incapacity?  In such situations, your Attorney-in-Fact under your Durable Power of Attorney may step in.  Your Power of Attorney may direct that your assets may be used to pay for food, medical treatment and other necessities, including keeping your pet at home as long as possible, as your Attorney-in-Fact decides appropriate.

At Samuel Sayward & Baler LLC, we recognize that pets are cherished family members. Happily, there are many options available to ensure your pet is well cared for in the event of your incapacity or death, and we will guide you through the process of determining the best way to provide for them in your estate plan. 

Attorney Abigail V. Poole is a senior associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member and President-Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA).  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020. 

 

March, 2022

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