In the 1970 Disney movie “The Aristocats” a
wealthy woman leaves her entire estate to her four cats for their lives, and
then to her butler, Edgar. Edgar
secretly hates the cats and tries to kill them so he can inherit the property right
away. Apart from the attempted murder of
course, what was a whimsical movie plot almost 45 years ago is now common as
the majority of states authorize trusts to take care of pets after their owner
dies. Specifically, according to the
ASPCA website, only four states --Kentucky, Louisiana, Minnesota and
Mississippi – do not recognize pet trusts.
And even in those states a pet owner can take steps to provide for a pet
using a “common law” trust.
Trusts for pets are usually created by pet owners
who do not have a close family member to care for the pet. In order to create a pet trust the pet owner leaves
money to a trust for the benefit of the pet, and appoints a trustee to manage
the money and make sure it is used as intended.
The pet can also be left to the
trustee under the pet owner’s Will so that the trustee is the pet’s legal owner. The trustee does not have to be the person
taking day to day care of the pet. It may
even be good to have those be two different people so that there is some oversight.
The pet trust should designate a back-
up trustee and a back-up caretaker in case the named people die or become
unable to take care of the pet. The
trust can of course detail the pet’s routine, preferences, needs, etc., to give
complete guidance to the caretaker and trustee.
After the pet trust ends any money left over will go people and/or
charities designated by the pet owner.
One downside is
that a court can reduce the size of the pet trust if the court finds it is
excessive for the purpose. For example,
under New York Estates Powers and Trusts Law 7-8.1(d): “A court may reduce the amount of the property transferred if it
determines that amount substantially exceeds the amount required for the
intended use. “ Such was the case with
Leona Helmsley’s dog Trouble, who saw his $12 million trust reduced to $2
million. However, by all accounts
Trouble lived a life of luxury until his death in 2011, as reported in
Trouble’s obituary from the NY Times: http://www.nytimes.com/2011/06/10/nyregion/leona-helmsleys-millionaire-dog-trouble-is-dead.html?_r=0
Pet trusts usually
last for the life of the pet. A pet
trust can also cover more than one pet, and in that case will usually last
until the death of the last pet to die.
However, some states limit the term of a pet trust. Four states – Alaska, Michigan, Montana and
New Jersey – limit pet trusts to a maximum length of 21 years. Tennessee has a maximum limit of 90 years,
and Washington State has a maximum of 150 years. Colorado and South Carolina specifically
provide that offspring in gestation are covered by pet trusts. However, even in states that do not address
this issue, the term “living” has usually been understood under trust law to
apply to those in gestation, so the result should likely be the same.
Instead of a formal
pet trust (or where a pet trust is not a legal option) a pet owner may use a “common
law trust” to provide for a pet after death.
In that case the pet owner would leave the pet to a trusted individual,
and would also create a separate trust for that individual with directions that
it be used for the care of the pet. That
means the caretaker is the beneficiary of the trust, and the caretaker is also the
pet’s legal owner. The trust could,
however, still have a separate trustee.
Because pet trusts
(whether formal or informal) are often created by those who do not have close
family members, it may be wise to anticipate that more distant family members who otherwise stand
to inherit may object to a large gift to a pet.
In a 2012 New York case an elderly woman named Charlotte Stafford
disinherited her nephews (who were her closest relatives) and left $100,000 in
trust for her cat “Kissie Meow,” together with a direction that Kissie and her
designated caretaker should occupy Charlotte’s house rent free until Kissie’s
death. The Will withstood a challenge by
the nephews based in part on the testimony of the lawyer and paralegal who
assisted with the preparation and signing of the Will that Ms. Stafford was
clear as to her wishes. Thus, solid
documentation of the pet owner’s wishes and careful execution of documents may
be particularly important when dealing with pet trusts.
For more information about pet trusts in
general, see the ASPCA website: http://www.aspca.org/pet-care/planning-for-your-pets-future/pet-trust-laws
Disclaimer – Postings
Not Legal Advice
This blog is not legal advice and no
attorney-client relationship is formed.
The information and materials on this blog are provided for general
informational purposes only and are not intended to be legal advice. The law changes frequently and varies from
jurisdiction to jurisdiction. Being general
in nature the information and materials provided may not apply to any specific
circumstances. Nothing on this blog is
intended to substitute for the advice of an attorney. If you require legal advice, please consult
with an attorney licensed to practice in your jurisdiction.
