Although surveys differ, up to 68% of households in the United States are thought to contain one or more animals considered to be a pet. 1 And an astute observer might notice that many pet owners consider their pets to be more than animals. They are beloved members of the family. And like other loved ones, many Americans want to ensure that their furry, feathery, or scaly friends are cared for should they die while their pet is still living.
Currently, all fifty states and the District of Columbia have some type of Pet Trust statute. Minnesota was the last to enact such a statute in 2016. And even though there are statutes on the books, as with any trust, there are many details that should be considered when creating a pet trust.
One of the most important details to consider is the statute in the governing state and the length for which Pet Trusts are allowed to remain in existence. These limits vary from state to state. In many states, the statutes simply require trusts to terminate when the last surviving animal passes away. Other state statutes, like the Minnesota statute, cap the trust term by a certain number of years.
The limits on duration imposed by statutes that define a specific number of years, 21 or 90 for example, can create a problem when it comes to Pet Trusts. What happens if someone in one of those states own a pet whose life span is longer than the duration limitations? For instance, Cocky Bennet, a sulfur-crested cockatoo in Australia, lived to be 120.2 And cockatoos aren’t the only exotic animals kept as pets with a lifespan that wreaks havoc with perpetuity limitations. As of April 2018, Jonathan, a giant tortoise, was a whopping 187 years old and designated as the world’s oldest living land animal by Guinness World Records.3 If his owner died when he was 50, chances are Jonathan would outlive the duration of his trust.
In addition to paying attention to how long the trust can last, the grantor of a Pet Trust must also consider who will care for the pet and what happens should the designated caregiver say “no.”
Leona Helmsley, a famous New York real estate investor, was infamous for her pet trust for her Maltese named Trouble. One of the less publicized facts concerned the caregiver provisions. Mrs. Helmsley originally appointed her brother to care for Trouble, but he refused to accept the role. There was no successor designated. Luckily for Trouble, the general manager of the Helmsley Sandcastle Hotel in Sarasota, Florida stepped in and agreed to accept the role.4 While it may be easy to find a trustee for a twelve-million-dollar pet trust (even though it was later lowered by the court to two million dollars), it might not be so easy for those of us leaving more modest sums to our furry friends.
To ensure that the Pet Trust works properly, it’s important to outline specific procedures of the animal or animals’ ongoing care. A very good example of that is a trust created for a cat for which we were the trustee. This particular trust required that the trustee set aside the sum of one hundred thousand dollars for the loving care and maintenance of the grantor’s cat, Taffy. The document went on to recommend that the trustee pay an amount up to five hundred dollars per month as a gift to Taffy’s caretaker to help defray the cost of food, shelter, medical care, and such other necessities as pet ownership requires.
In addition to these general provisions, the trust further stated that Taffy was to be delivered to the possession of the grantor’s friend and personal caregiver, (a specifically named person), to care for Taffy as her own for the remainder of the pet’s life. During such time as Taffy was residing with the caregiver, the grantor requested that she provide Taffy with healthcare through a particular animal hospital on at least a semi-annual basis, and if the caregiver were to become unable to provide such care, or, if for any other reason Taffy ceased to reside in the possession of the caregiver, then the grantor recommended the trustee seek the assistance of a specifically named veterinarian clinic to aid in placement of the pet with another home. The grantor also required that the trustee inquire from time to time with both the caretaker and the veterinarian concerning Taffy’s wellbeing.
The trust created by Taffy’s owner was well thought out and specific in terms of who was to care for the animal and what happens if that individual is not willing or able to do so. But what does the trustee do when the trust fails to name a caregiver, caregiver succession, or provide any details of how the funds are to be expended?
A good example of a problematic pet trust was a trust we had for a beneficiary’s dog, Bridget. The grantor in that case provided no specific guidance regarding who was to care for Bridget or how she was to be maintained. The trust simply provided that the trustee should retain in trust enough assets to take care of all the grantor’s pets for as long as the pets lived. Unfortunately, the dog living in the grantor’s home at the time of his passing was a mature dog that had never been housebroken. No individuals volunteered to take him. Fortunately for Bridget, one of the charitable remainder beneficiaries was a no-kill animal shelter. The shelter stepped up to assume responsibility for Bridget and ensured she became trained and adopted out to a loving family. Otherwise, the charity promised they would provide a permanent position for Bridget as their facility mascot.
Not all situations with poor planning resolve as well as Bridget’s.
If the care of a pet following the death of the owner is desired, then give as much planning and consideration as one would for any other type of gift left in trust.
1 Kain Brulliard and Scott Clement, “How many Americans have pets? An investigation of fuzzy statistics,” The Washington Post, Jan. 31, 2019, https://www.washingtonpost.com/science/2019/01/31/how-many-americans-have-pets-an-investigation-into-fuzzy-statistics.
2 Zoe Miller, “11 of the oldest animals ever, ranked by age,” Business Insider, Apr. 23, 2019, https://www.elephants.com/news/the-sanctuary-in-the-news/posts/11-of-the-oldest-animals-ever-ranked-by-age.
3 Ibid.
4 Cara Buckley, Cosseted Life and Secret End of a Millionaire Maltese, June 9, 2011, The New York Times, www.nytimes.com/2011/06/10/nyregion/leona-helmsleys-millionaire-dog-trouble-is-dead