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Companion animals have been part of our lives for thousands of years. In recent times, domesticated cats and dogs—as well as birds, rabbits, guinea pigs and a variety of fish to list a few—have become an integral part of the family unit. As owners/caretakers, we provide for their needs and they give us their affection, devotion and the simple pleasure of being in their company. In 2013, Americans spent an estimated $56 billion caring for their companion animals.
But what happens to our “pets” if we are no longer around to provide for them? Under traditional common law, animals are considered as property and cannot receive an inheritance. In recent years, responsible pet owners have demanded a mechanism by which they can provide for their companion animals after death and the law has evolved to create the “pet trust.” The National Conference of Commissioners on Uniform State Laws’ adoption in the 2000 Uniform Trust Code of a provision for the drafting of trusts specifically for the care of animals has given a boost to the recognition of pet trusts. Today, most states have passed laws allowing some form of a pet trust and an increasing number of pet owners are including their companion animals in their estate planning. A complete list of states that have adopted pet trusts is available on the Animal Law Resource Center.
Pet trusts have made headlines during the past decade. When Leona Helmsley died in 2007, she left the bulk of her estate, $12 million, to her Pekinese dog, Trouble. Though the court later reduced the bequest to a “mere” $2 million, Trouble lived a long and happy life of luxury because of her owner’s careful planning.
Joan Rivers also kept her dogs in mind when planning her estate. When she died in 2014, the news reported that while the bulk of her $150 million estate was left to her daughter and grandson, arrangements were also made for the long-term care of her dogs. Reportedly, her beloved rescue dogs moved from Joan’s opulent Upper East Side Manhattan condo to the home of one of her personal assistants, Jocelyn Pickett, where they will receive lifelong care.
Many Americans mistakenly presume that unless they too are millionaires, it is too much of a hassle to provide even modest financial provisions for their companion animal(s) when they can no longer care for them because of illness or death. But the responsibility for companion animal care should not end with the death of the owner. The truth is that anyone who has assumed care for their pets should—and most probably want to—provide for their life-long care. Even if you have few assets to dispose of in a will, creating a trust for the care of your companion animals is still important as it allows you to designate a caretaker now in anticipation of a future need—a provision that can take effect immediately, prior to probate of a will because the physical needs of your animals will not wait.
One of the main advantages of establishing a trust for the care of your companion animal(s) is that if the named caretaker cannot or will not accept the responsibility for that care, or if the care provided is inadequate, the trustee or executor of the estate has the authority to find a more able caretaker. The trust funds would then be available for the new caretaker to use for the care of the animal(s).
The key to ensuring that a pet trust is enforced for the optimum care of a companion animal(s) is fourfold:
- Appoint a trustee who is in a position to monitor the health and welfare of the animal(s) with some regularity and who would be willing to intervene if an animal is not being properly treated;
- Appoint a guardian under the trust who has agreed to undertake the responsibility and—if possible—has exhibited concern and care for the animal during the owner’s lifetime.
- Populate the trust with funds to provide adequate—even lavish—care for the pet in question, including a fee for the guardian if appropriate, based on a reasonable life expectancy and the possibility of serious illness at some point in time. But keep in mind that tying up money in a pet trust in excess of any and all possible scenarios for the lifetime care of your animal, including disposal of the remains, invites judicial intervention and possible redirection of the assets in contravention of the intended purpose of the trust, as with Leona Helmsley’s bequest mentioned above.
- Lastly, it is necessary to designate in the trust the disposition of any remainder of assets after the death of the pet. By leaving the residual trust to a charitable organization, you can ensure that the parties caring for the pet have a vested interest in giving them the best possible care during their lifetime without the expectation of further benefit once the pet is gone.
Everyone who cares for their companion animals should take these steps to ensure that they have adequate provision for their animals’ comfortable life long care.