of the public thought of a pet trust as something only the rich and
eccentric would create. Today, almost all states allow you to create trusts for pets, with no human beneficiary needed, and public opinion is changing. Although the most familiar instances of pet trusts are “infamous,” such as those created by Leona Helmsley and Oprah Winfrey for their pets, in many instances they make a great deal of sense. Simply desiring to provide for the continuing care of your beloved pets is enough of a reason to consider the possibility.
Statistics to Consider
According to attorney Rachel Hirschfeld, “Over 500,000 companion animals were euthanized this year because their pet owners died, moved into nursing homes or assisted-living
situations, or otherwise were no longer able to care for them, and left them behind without enforceable plans.” While most of us have family and friends we can trust to care for our animals if we are unable, the thought of this is unnerving.
Making arrangements in advance can give pet guardians peace of mind and also spell out their wishes for their animals’ care.
How a Pet Trust Works
Generally speaking, pet trusts are written in such a way that they take effect when the owner dies. There are several issues that need to be covered and addressed thoroughly in this document.
First the animals which are to be covered need to be listed. Most states allow for creating a trust to provide for the care of multiple animals that are alive during your lifetime. This means that the trust remains in effect through the lives of your pets, but no longer. Setting up a trust that is indefinite, such as a trust that covers new pets or your current pet’s offspring, is not legal.
Secondly, the person to whom your pet(s) will be entrusted must be listed. Even if you don’t feel the need to create a legal document, this is an incredibly important decision. Individuals who care for long-lived pets should especially give this topic consideration. Life is unpredictable, and your animals will not be able to care for themselves. Choose carefully. The person you name will need to be someone who is willing to care for your pets’ every day needs. Friends and family may note in passing that they would do this for you, but that is not enough. You should have a serious conversation and make sure that everyone feels comfortable about the arrangement, even if it is your spouse
who will do the caretaking. Naming an alternate caregiver is important as well. It’s possible that the person you ask initially may not be in a position to follow through when the time comes.
The amount of money designated for your pets’ care should also be stated in the trust. Think this through carefully and be realistic. The cost of care may change based on the age of your pet and its health. Keep in mind that designating an outlandish amount of money may cause the trust to be contested by family members. If this happens there is a good chance a judge will reduce the
amount. According to Hirschfeld, a Pennsylvania woman set up a trust in 1974 allocating $40,000 to $50,000 a year available for the care of four horses and six dogs. Hirschfeld stated, “The court ruled that as long as the animals were well taken care of, the trustee was free to give the surplus money to the alternate beneficiaries named in the will. (Lyon Estate, 67 Pa. D. & C.2d 474 (1974).)”
The trust also needs to include caretaking instructions. It is not unusual for a pet trust to be very specific about the care of the pets listed. This is not a bad idea, especially if the caretaker listed
doesn’t live with the animals. It is nice to know that favorite food, toys, and activities will be given when you are no longer there to provide them.
There will also need to be an advocate for the trust. You may need someone to go to court and enforce the terms of the trust if necessary. The person listed will be the one who makes sure
the trust funds are being spent as detailed by the document and not on other things.
One of the benefits of a pet trust is that you can also make provisions for events when you are alive, but unable to care for your animals. While a will would not go into effect until your passing, a trust can go into effect when needed. The caregiver you name will be immediately able to take custody and control of your pets if necessary.
Legal Challenges to Pet Trusts
It is important to consult an attorney and be aware of the laws in your state. If a pet trust isn’t considered valid in your state, it may or may not be honored by the court. Sometimes a judge will take the concern and good intentions of the trust into consideration and deem it an “honorary trust.” This would make it valid, but it wouldn’t be enforced by the court.
According to attorneys who deal with trusts, it is very uncommon for a trust to be challenged in court. However, if the trust is written in such a way that family members are being disinherited
and the pets seem to be receiving an inheritance out of spite, it is possible that it will be contested. There are other reasons as well that a trust might be contested, but in general, a well-written,
reasonable trust is likely to be honored.
Why Not Just Put Your Pet in Your Will?
Keep in mind that a will isn’t read and enacted immediately, which would leave your pets in limbo during the interim. Also, pets are considered property in the eyes of the law, and when
included in a will are treated as such. Property cannot legally inherit, only people can. You cannot leave money directly to your pet in your will, and it is possible that the person who was left money to care for a beloved dog might choose to spend it on an exotic vacation. In this case, there is little legal possiblity to enforce your wishes.
According to Hirschfeld, when the pet trust is a free standing document and not enacted by mention in the will, then it is valid in all states that recognize pet trusts. The court is not authorized
to change your instructions in a free standing pet trust. She states, “The pet trust requires an attorney, and may serve the client best in situations where heirs are expected to contest the plan or when tax planning should be included.”
Whether consulting an attorney and creating a trust makes sense for you, the considerations made while creating one are very important. We should all have a plan for our pets and their care in the event that we can no longer care for them.
By Sarah Zumhofe