By Dennis R. Delaney
You may have heard that recently deceased hotel magnate Leona Helmsley left her beloved dog — a Maltese named "Trouble" — a $12 million trust fund to ensure that the canine would be able to continue living her pampered lifestyle. She also directed that the dog ultimately be buried beside her in the family mausoleum.
With this trust fund, Trouble's troubles are certainly behind her, but pets in Massachusetts are not so lucky. In the commonwealth, pets cannot be trust beneficiaries, and a trust held for the sole benefit of an animal would be invalid.
As some are more concerned about the welfare of their pets than many of the people in their lives (which certainly was true for Helmsley, who disinherited two of her grandchildren), providing for care of pets in Massachusetts can be a tricky and emotional matter.
Unfortunately, none of the options available in this state can guarantee that the pet will continue to live the life that its owner intended. For most pet owners, this is not an issue, as they simply will make informal arrangements with a family member or friend to care for the animal, or, failing that, such a person will find a new owner for it. But this obviously provides no assurances as to the quality of life that the pet will lead.
For those who provide for pets in their estate plans, one fairly common method is to leave the animal to a trusted friend or relative who shares the owner's love of the animal (if such a person exists), along with a cash bequest to the person to alleviate the financial burden of caring for the pet, and instructions for care. As a practical matter, however, it would be impossible to enforce those provisions.
Often, an owner will not have anyone in mind that he or she feels would provide the same care and affection for the pet as the owner has. In such a case, an option would be to leave the pet to a charitable organization dedicated to animal welfare, one that focuses on the particular animal at issue, and leave a cash bequest to that organization with a request that it finds a good home for the pet. For many, this is a sound solution, but for those who want to be sure that their pets will have the best, it is still something of a risk.
Still another option is to set up a trust to provide for the care of the pet. The trust could simply direct the trustee to hire a caretaker for the pet and pay a salary to that person. But, in most cases, this would be impractical.
A trust could also be established for the benefit of the caretaker and contain directives concerning the pet's care. The trustee would have a fiduciary duty to follow the trust directives and keep tabs on the animal. The trust could even direct that the caretaker would no longer receive distributions if the trustee determines that the pet is not living well.
Of course, if the trustee and the caretaker are the same person, as a practical matter there will not be much more assurance of the pet's care than if the owner left cash outright to the caretaker under the will.
More than half of the states in the country now have laws that allow a pet to be sole beneficiary of a trust, including New Hampshire, New York, Maine and Florida — but not Massachusetts. Without such a law, Massachusetts pet owners must rely on friends and family to care for pets or explore less-than-perfect alternatives such as those outlined above.
For people with substantial wealth and costly pets (e.g., horses), it may make sense to consider establishing a trust based in New Hampshire or another state that allows pets as beneficiaries.
Dennis R. Delaney is a partner at Hemenway & Barnes in Boston, where he practices estate planning. He can be contacted at ddelaney@hembar.com.
September 10, 2007
