Equine Law Explained

When I tell people I am an equine attorney, a lot of people think I represent horses in legal actions. That’s not quite how it works, although I hope that horses benefit from the work I do with humans. An explanation of equine law might help explain the wide breadth of this area of law and what I can do for you.

Equine law focuses more on the community it serves rather than a specific area of law. As an equine attorney, I work with people who have horses in their lives. My clients can run the gamut from a person who has a horse in the backyard as a companion animal to someone who competes at the national and international levels. I work with individuals and companies, both for profit and non-profit, who are involved in the horse industry. These people have different legal needs depending on their role in the horse world. Some of the people who require equine legal services include horse trainers, riding instructors, boarding barn owners, clinicians, breeders, horse sellers, professional riders, horse purchasers, equine vets, horse chiropractors, and horse massage therapists.

In order to meet the various needs of the horse community, equine law encompasses several areas of law. Business law applies to many horse-related activities, especially when dealing with contracts. The horse industry has historically conducted business “on a handshake,” but that leads to many problems. Contracts are a way for all parties involved to make sure everyone has the same understanding concerning the transaction. Some of the contracts necessary to the horse community are boarding contracts, sales contracts, breeding contracts, and liability releases. Business law also applies if a person wants to create a company or a nonprofit. Many horse people are great with horses, but not with the business side of being a horse professional. Hiring an equine attorney allows you to feel confident that you have picked the right business structure and that your business has been set up properly. Because of my experience as a horse professional, I also provide consulting services for equine business owners.

Another very important area for equine business owners is trademark law. If you want to protect your brand, and by that I mean your business identification not your horse brand, then you should register your name, logo, slogan, or something similar that lets people recognize your business. Registering a trademark can be tricky because it’s not an automatic approval process. I provide a search and analysis for horse businesses as well as registration services. If you tried to get your mark, and the United State Patent and Trademark Office denied your registration, I also respond to Office Actions after discussing the issues with you to see if there is a chance we can get you your mark.

A lot of horse people are writing books and creating DVDs. In addition, equine photography is a growing field in the horse industry. These creative horse people need to protect their work with copyright registration. It’s true that you own the copyright as soon as you create a work. However, you can only enforce those rights in court if you have an approved registration of your work with the US Copyright Office.

Estate planning is an important legal area to include when thinking about equine law. In Massachusetts, an individual can have a horse trust, which ensures that a horse or horses are taken care of if the owner is incapacitated or dies. You may think your will is all you need in those situations, but a will has no effect if you are incapacitated, and it must go through probate before it can take effect when you die. Money and other assets are not available until the will is probated, which can take several months or even years. A horse trust gives you peace of mind that your horse is taken care of as soon as you are incapacitated or during the time your will is probated. In addition, Massachusetts has an estate tax unlike most other states. If you own horse property, you may hit the $1 million amount that triggers the tax. I have solutions for you to save you on estate taxes so that more money can go to your beneficiaries.

There are only about 100 attorneys in the country who practice equine law.  To be a good equine attorney, the person should obviously be a good attorney but she should also have a solid working understanding of the horse industry.  The more experience an equine attorney has around horses, the better she will be able understand the many scenarios that can happen and she will be able to craft solutions to avoid problems or to handle them if they arise.

Joanne L. Belasco, Esq.I practice preventive equine law, which means that I work with clients to avoid problems that may lead to litigation.  When you talk to me about your legal concerns, I understand your problems because of my experience as a horse professional and personal horsewoman.  An attorney without knowledge of horses and the horse industry is not able to understand basic terms and broader situations that we, as horse people, do. You don’t have to spend time explaining basic concepts to me, such as your horse colicking, because I know the term and have gone through the experience myself with my horses.

Contact me today, and we’ll set up a time to see how I can help with your equine legal needs.

Updating Your Estate Plan

As a part of the estate planning I do for my clients, I contact them each year to see if they need to make any updates or changes to their plan. You may think that once you get your estate plan drafted that you can make some changes just by handwriting in the changes and adding your signature to the change. Not so fast!

There are specific procedures that have to be followed when you execute the documents in your estate plan. According to Massachusetts law, you need a certain number of witnesses and those witnesses must meet certain requirements. You must also have documents notarized. If you do not meet these requirements, then your will, trust, or incapacity documents could be considered invalid after you become incapacitated or die. All that hard work and money that you put into getting your documents drafted correctly by an attorney will be wasted. Even more importantly, you may not receive the care you wanted, and your beneficiaries may not receive the inheritance you left them.

In addition, making a change to your estate plan without having your estate planning attorney do it may have other ramifications. You may put in a term or make a change that is not recognized by Massachusetts. For example, an Irrevocable Medicaid Trust must have certain language in it or it may be successfully challenged by Medicaid, causing you to potentially lose your home to pay for nursing care costs. An estate planning attorney stays current on any state law that may effect estate plans. This allows her to draft documents that meet your needs and are legally binding.

If you haven’t updated your estate plan in the last year or longer, contact me so we can see if you want any changes made, and I can make sure they are done correctly.

Animal Trusts

Recently, I have seen posts on Facebook horse groups that ask if people have plans for the care of their horse if they are incapacitated or die. Many people say they have talked to a friend or they have written some informal agreement. Unfortunately, neither or those options are ones that will hold up if the person decides not to take care of the horse.  Luckily, there is a legal vehicle that allows you to plan for your horse’s future in the event you are incapacitated or die. That document is called an animal trust, and you can have one for every animal in your family, not just your horse. Currently, every state and the District of Columbia had some form of legislation that allows for animal trusts. While an animal trust is a stand-alone document so it doesn’t need to be included in your estate plan, it is a good idea to let your estate planning attorney know that you have or want one.

Animals as Property Under the Law

Under the current law in every state, animals are considered property. This means someone literally cannot legally step in and take care of your animal if anything happens to you because they do not own your animal. For example, if you are in a coma and your riding buddy decides to move your horse to a less expensive boarding barn during that time so she can take over board payments for you, she could be charged with theft, no matter how good her intentions. She also could not access your checking account to make the regular monthly board payments she knows you would want to make to keep your horse where it’s currently boarded. She would literally be helpless to intervene if the barn owner decided he had to file legal papers to seize your horse and then sell it to pay for unpaid boarding costs if several months went by while you were incapacitated and unable to take care of things. We all would hope that a boarding barn owner would understand but sometimes finances take first priority, especially when it’s a business that relies on that income.

Animal Trusts

The way around this problem is to create an animal trust. The trust becomes active if you are incapacitated or when you die. Once you are no longer incapacitated, it is no longer active and returns control to you to handle matters concerning your animal.

An animal trust gives you the ability to provide funds for your animal’s care and to include specific instructions concerning that care. When you set up the trust, you set aside enough money in it to take care of your horse in the manner you prefer. How much money should you put into the trust? It depends on how long you want it to last. Write down a monthly budget that shows how much it costs to take care of your animal. Then decide how many months you want to provide care. For example, you may want to provide care for six months and then have a provision that if you have not regained capacity by then, you want your animal sold to someone or given to a specific person. If you want your animal taken care of after your death, you could put in enough money to care for him for several years. Make sure that the amount is reasonable, though. While animal trusts are generally not challenged in court, an argument could be made to reduce the amount you have left for care if one of your relatives or someone you left an inheritance to claim that the amount to care for your animal was excessive. Keep in mind that you can add money to the trust. So start with what you can afford and add more if that works best for your budget.

An animal trust also allows you to name a trustee, which is the person who will take care of your animal if something happens to you. You can be as specific or general as you want concerning that care. You can leave it up to the trustee, or you can put in specific provisions you want the trustee to follow. For instance, you can include directions concerning where your horse is stabled, how she should be fed, and additional instructions about the farrier and vet visits. You can even stipulate specific things such as how you want your horse to be blanketed and special treats she should get fed. It’s always a good idea to talk to the person you want to name as trustee before you set up the trust, to make sure she can take on that responsibility and is comfortable following your directions for your animal’s care. Depending on your state, there may be other people included in the trust, such as a vet who makes sure the animal is being taken care of properly.

When you decide you’re ready to create an animal trust, contact an animal or equine lawyer in your state so you can be sure the state’s legal requirements for the trust are met. If you are a Massachusetts resident, please feel free to contact me to discuss one. Be sure to revisit the trust every year to make sure the funds you’ve set aside are still adequate and to make sure you don’t want to change any of the instructions for your animal’s care. Then enjoy the peace of mind knowing your animal will be taken care of if anything unexpected ever happens to you.

This blog post is for educational purposes only.  It does not create an attorney-client relationship.  Seek an attorney’s advice for your specific situation. 

Equine Estate Planning

horse law attorneyHow will your horse, your horse property, and even your horse business be taken care of if you are ever incapacitated or after your death?

I know that these are not pleasant topics to read about. We all want to think that we will never get badly injured, but we know it happens. We’ve all read about the tragic riding accidents suffered by Christopher Reeves and Courtney King Dye. You may have also seen the various Facebook posts asking for help to care for a horse whose owner was injured in an accident and didn’t have any system in place to pay for horse care. These kinds of situations can be addressed before they ever happen. Estate planning documents that take into consideration your equine lifestyle can give you peace of mind that your horse, as well as property and business, are will be taken care of in the case of incapacitation or death. First, let’s look at estate planning documents and then I’ll talk about how they apply to horse interests.

As you will see, there many considerations with your estate planning if you are involved with horses. There are also many options that allow you to create a plan that works for your individual needs, as well as the needs of your horse, property, and business. As a horse person and an estate planning attorney, I can talk with you about your various options so that you have an equine estate plan that meets your specific needs and provides you peace of mind about the care of your horse, property, and business.

Wills and Trusts

wills trusts equine law bridle saddle pad To provide for the distribution of your estate after your death, you should have a will or trust. If you own anything — like a car, house, or horse tack — then you have an estate. Under Massachusetts law, horses are considered property so they are handled just like any other kind of property. If you do not plan for how you want that estate to be distributed, then you will die intestate, and your items will be distributed according to the state intestacy laws.

Everyone has heard of a will when it comes to estate planning. A will is a legal document that allows you to leave property to certain individuals and organizations. What you may not know is that a will does not automatically give your estate away the moment you die. It must go through probate, which means it is filed with the court and becomes a public document that can be seen by anyone who looks up the file. Probate is a process that takes anywhere from 9 months to several years, depending on the complexity of the estate and any challenges to the will. It usually costs several thousand dollars to have an estate probated. A will usually requires the payment of estate and inheritance taxes. If you haven’t made other plans for the probate period, your assets are not available to pay for horse needs, such as board, feed, and farrier care.

trust estate planning equineA trust is another estate planning vehicle that allows you to leave your estate to certain individuals or organizations. A trust does not go through probate so it is effective as soon as you die. It is also not a public document. Oftentimes, it is used as a way to defer and avoid certain taxes. During your lifetime, you place your estate in the trust. As trustee of the trust, you still have full control over the items as if you owned them. One advantage of the trust is that funds to care for your horse are  available automatically because it does not go through probate.

There are several factors to consider when deciding if you want a will or trust as your main estate planning vehicle. I go over those considerations when I counsel my clients on what would work best for their individual situation.

Additional estate planning documents

There are also several other documents you should have as a part of your estate plan. These documents are very important in the case of incapacitation.

Durable Power of Attorney:  This document allows you to appoint an agent to handle your financial and other affairs if you become incapacitated.

Health Care Proxy:  This document allows someone you have designated to make medical decisions for you should be you become unable to do so.

Advance Directive:  Sometimes called a living will, it is a guide for your agent listed on your health care proxy concerning what health measures you want taken should you become unable to make those decisions for yourself.

HIPAA Release:  This document allows your medical information to be released to individuals or organizations you list in the release.

Horse Trusts

horse trust care feedEveryone with a horse should have a horse trust in addition to the other estate planning documents. You can have a horse trust even if no other property is in a trust. Massachusetts law provided for horse trusts beginning in 2011.  The law allows you to create a trust to take care of your horse or any other animal in the event you are incapacitated. The trust can terminate when you are able to take care of the animal again or at the animal’s death.

A horse trust gives you the ability to include specific instructions concerning the care of your horse. You can specify basic care such as where your horse is stabled, how it should be fed, and additional care, such as farrier and vet visits. You can name the person who will take care of your horse, which means you can make sure the person you want is taking care of your horse. You can even stipulate specific things such as how you want the horse to be blanketed and special treats for your horse. One of the biggest advantages to a horse trust is that it takes effect at the moment of incapacitation or death. This means you don’t have to worry that your horse will be neglected should anything happen to you.

Horse Property

horse property barn wills trustsUnlike having a house, a horse property provides you with additional considerations when it comes to your estate plan. As with a house, you may stipulate whether your horse property is sold after your death or whether you leave it to someone. You may also want to ensure that the property remains available for a horse lover to purchase at some time in the future and not turned into a shopping mall or housing development. To do so, you can have a conservation easement put on the property. A conservation easement allows you to determine limitations on future development, and it may also lead to some positive tax consequences. One negative to these kinds of easements is that it may lower the property value if the property is sold at some point.

Horse Business

trail ride horse equine law attorney older riderIf you are a horse professional, you want to decide what will happen to your business when you die. One option is to simply let the business end. But if you want the business to continue, you should consider how you want it to operate without you. This is called succession planning. Some of the considerations include who will own and manage the business as well as the development and training of successive owners. There are several different ways to create a succession plan, some of which involve trusts in order to reduce taxes and avoid probate.

If you would like to discuss any of the options you have just read about, contact me today.