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Taking Care of Your 'Good Boy': Pet trusts ensure animals live a good life after owner dies

By Julianne Hill

September 4, 2024, 11:03 am CDT

Most dog moms and cat dads accept the hard truth that they will likely outlive their beloved animals. But what happens when pets outlive their humans?

Nearly 82 million Americans own a pet, according to American Pet Products Association, and nearly all U.S. pet owners—97%—say their pets are part of the family, according to a 2023 Pew Research Center survey. Legally all those good girls and good boys are considered property—the same as a car or a toaster.

Therefore, ensuring that beloved animals are comfortably cared for via an estate plan is important.

“Pet trusts are now on the list to think about,” says Ashley Dobbs, a professor at the University of Richmond School of Law, who has led CLEs for the American Bar Association on animal law. “Awareness has grown.”

Historically, under common law, courts would not allow pets to inherit money or property even if it was specified in a will, says Delcianna Winders, associate professor and director of the Animal Law and Policy Institute at the Vermont Law & Graduate School.

For instance, when tobacco heiress Doris Duke died in 1993, she left $100,000 in an “honorary trust” for the care of her pets. Those types of trusts were considered unenforceable by the courts and put the trustee in full control of the animals’ fate.

But the Uniform Probate Code shifted in 1990 to validate pet trusts, and all 50 states and the District of Columbia now have provisions allowing them, according to the ASPCA.

Now, “a pet trust certainly feels less outside the box,” Dobbs says.

Pampered pets

Trusts for companion animals came into the general public’s consciousness through contentious cases involving the animals of the superrich.

Although laws have changed since the Duke case, problems still arise. When New York real estate magnate Leona Helmsley died in 2007, she left $12 million of her multibillion-dollar estate to her white Maltese named Trouble via a pet trust.

But Helmsley’s human heirs protested. She specifically left two of her grandchildren out of the will. They sued the estate, saying their grandmother was mentally unfit when she wrote her will, using the millions left to her dog as evidence.

A Manhattan surrogate court judge agreed and reduced Trouble’s inheritance to $2 million, with the two grandchildren splitting $6 million and the remainder going to a charity. Still, Helmsley’s pooch spent the last years of her life at the Helmsley Sandcastle Hotel with a full-time security dog to guard her after death threats.

However, several years later, a surrogate court judge in Westchester County ruled the other way. When Lenore Abels created a trust for her two cats, Polk-a-dot and Ginny, worth $4.7 million, she specified the funds were to provide a salary for their caretaker and offered detailed instructions on the standard of care for the cats in Abels’ home.

When the executor argued that the cats’ trust should be reduced to $440,000 and the remaining funds split amongst charities, the court refused, stating that Abels was very specific in her wishes.

Write it down

Although pet trusts are no longer considered only quirky bequests of the ultra wealthy, many pet parents forego the legal documents and ask family or friends to serve as backup care for their animals. A 2023 survey of millennial pet owners found that 77% designated someone to act as a pet guardian, according to Trust and Will magazine.

But informal agreements can be disastrous for the animals, attorneys say.

Without a pet trust, funds to care for an animal could be tied up indefinitely in probate. The average annual cost of dog ownership ranges from $1,270 to $2,803, according to a Synchrony study.

“Maybe a family member takes the animal, or maybe the police come in and drop it off at the shelter, where it’s very likely going to be euthanized,” says Timothy Midura, an estate lawyer at Huck Bouma who has written articles and taught CLEs on animal trusts. Once the pet’s owner dies, “nobody cares anymore.”

Pet trusts avoid having the animal being dropped at a shelter or abandoned, but cost can run “in the thousands of dollars,” says Fiona Farrell, an attorney who specializes in animal law.

Not only do lawyers need to educate their clients on these sophisticated instruments, many need training on how to create them. “That’s where the void really is,” says Midura, general counsel of the Brooks Institute, which focuses on animal law matters.

Next of kin

Pet trusts have some similarities to other dependent trusts, however, every state has slightly different rules.

“Some states say any vertebrate can have a trust, so a pet octopus would not be covered,” says Winders, a vice chair of the ABA Tort Trial and Insurance Practice Section’s Animal Law Committee. Farm animals like pigs and cows are typically considered property, however, and bequeathed as part of the estate, she adds.

“A domestic companion animal is one the person has chosen to live with and an animal that is dependent on its owner,” Midura says. “You want to distinguish that from the person who feeds the squirrels and the rabbits that are outside.”

As they set up the trust, attorneys should walk clients through a series of questions then go through all the details of the many considerations involved.

“What do you want to have happen to the pets? What should be done if they get sick?” Dobbs asks. “What kind of insurance do you have? What happens if the person who’s caring for the pet can’t anymore?”

Pet owners must first specify which animals are included and make sure those pets can be identified with photos, microchips or DNA, Dobbs says.

Then, determine the appropriate person or people as executor and the caretaker along with successors. Sometimes the same person can be both, but some attorneys suggest two people, one who handles the finances and another who handles the animal’s care. Inform the people chosen for these roles and their alternates of their responsibilities.

“Also, a trust enforcer would make sure that the caregiver is truly looking after the animal,” Farrell says. This oversight can help prevent fraud. For instance, a caregiver could replace an aging black lab with a younger one to keep the trust funds flowing for years if the trust enforcer was not checking in and familiar with the specific animal.

Next, describe in detail the pet’s standard of living. Determine how much is needed to cover the pet’s care, how the funds should be distributed to the caregiver, plus how much is needed to administer the trust.

In addition, the pet owners should detail who makes decisions about the animal’s treatment and euthanizing, as well as instructions for burial or cremation.

Designate a remainder beneficiary, such as an animal welfare group, if the funds in the pet trust aren’t exhausted in the animal’s lifetime.

Often, a trust terminates when the last animal covered by the trust dies. “So, if the animal dies and you adopt new animals, you’re going have to update the trust,” Dobbs says.

This process can be emotional for clients. “Just as with people having a hard time thinking about their own passage, it’s hard to think about pet trusts,” she adds, “but it is important.”