According to the American Veterinary Medical Association, pet populations, particularly dogs and cats, are on the rise and expected to continue to increase through at least 2030. Many people have welcomed a new pet to the family during the COVID-19 pandemic as well. A common question that clients should think about is: who keeps our fur baby if we are no longer able to care for it.
The Probate and Family Court in Massachusetts, as in most family courts in the U.S., pets are treated as personal property. If you do not have a Last Will and Testament indicating who exactly gets your fur baby the Courts may decide for you. If the heirs are squabbling the Court may appoint an Independent Personal Representative to ultimately make the decision.
When preparing your Last Will and Testament you want to consider who is best suited to keep the pet. It is not the same factors used when considering the dividing up of the furniture, the silverware, and all the rest of the “stuff” we accumulate. It is important to consider the following factors:
The history of the pet: Was the pet purchased, and if so, by whom? Was the pet a gift, and if so, by whom, and to whom?
Who “used” the pet: Who took care of the fur baby? Who fed and bathed her, played with her, cleaned her cage or litterbox, and took her for walks? Who bought her food and supplies? Who took her to the vet and groomer and paid those bills? Who spent more time with the pet?
The potential benefits to the party who retains the pet: Which party would benefit more from keeping the pet, and why?
If you think pet ownership is going to be a controversial issue in your estate plan, consider gathering documents you may have showing how your pet was acquired and who paid for her expenses. Start thinking about why one heir might benefit from keeping the pet more than another heir would. Does the heir travel extensively for work or spend long hours at the office and not have much time to be with the pet? Is the pet more bonded to one heir more than another heir? If the pet is a support animal, is there a special needs heir that would benefit by having sole ownership of your pet? Consider getting notes or records from a doctor or mental health professional outlining this “use” of your pet, as well as any training certifications or other documentation for your pet that would show that it is a support animal.
If you heirs want a “visitation” schedule for your pet, you can build that into your Last Will or Testament with what is called a
“Testamentary Trust” otherwise your heirs will have to go outside the Probate and Family Court process to make arrangements. They can enter into a contract separate from the Probate Documents, which should be signed and notarized and should outline ownership, a visitation schedule, and payment of your pet’s routine and emergency expenses. Perhaps most importantly, you should consider hiring experienced Estate Planning counsel to help avoid some of the pitfalls and ensure that your plans and agreement regarding your pet will be enforced.