The New York Times ran a somewhat unusual article last month about pet funerals. The piece detailed how a pet funeral service offered “aquamation,” which is a water-based alternative to fire-based cremation. I didn’t know that there was such a thing. Or, that some folks, as memorials to their beloved pets, would have their pet’s fur preserved in a locket or paws preserved by a taxidermist!
However, I totally get it. It’s estimated that as of 2018, there were about 85 million households in the United States with pets*. This means that about 68% of the American population have animals in their homes. Our pets – be they named Bella or Bailey – are our family. Their passing is as hard on us as that of a human loved one. Indeed, one pet owner interviewed for the Times article said of her beloved dog, “She has been with me through college, law school, all my boyfriends.” If you’ve ever loved a pet, I’m pretty sure you can absolutely relate to this feeling of unmatched companionship and emotional support.
Under U.S. Law, Pets are PROPERTY, Not Persons
If you’re like most pet owners, you’ve probably assumed that someone like a friend or relative would take your pet in if you were no longer around. While this may be true for most pet owners, unless you are completely certain that a friend or family would care for your pet until it also passes away, it’s best not to make such assumptions.
U.S. common law still considers pets our personal property rather than a “family member.” This means that automatic protections that apply to minor children or special needs children don’t apply to our beloved animals. If you don’t plan for what happens to your pet should you (if you’re single) and your spouse (if you’re coupled) are no longer able to take care of it, the courts will have to decide what to do with them if those you know won’t take them in. Whether you have a will, a living trust, or pass on intestate (without a will), your pet will be dealt with as property you’ve left behind. And you can’t leave money to them because pets can’t own possessions or investments the way people can.
Pet Trusts – A Smart Solution
Estate plans can include a multitude of legal documents that protect and enforce your wishes. One such document is a pet trust. Almost all trusts deal with property and possessions, i.e. how they are preserved, distributed, or used. Today, all 50 states have legislation permitting and regulating pet trusts.
You may be asking – why have a pet trust if you have a will? Certainly, you can leave your pet to a person of choice as a possession (bequest) in your will. But what if that new caregiver, much as they would love your pet, doesn’t have the financial means to give your pet the best quality of life? Or, what if that person comes to find later on that they cannot manage the care of your animal (due to e.g. illness), and has to find another person to take your pet, or even give it up to a shelter if left with no alternatives? There’s also the risk that that person may not be able to properly manage/use the money you’ve left to them for taking the best care of your pet.
In short, the person you entrust your pet to may have the best intentions, but if they are unable to financially or otherwise care for your pet, and you’ve created no back-up plan, you’re taking a real risk with your pet’s well-being. A pet trust is an effective way to manage this risk.
A pet trust is also the preferred solution when you have specific instructions regarding the care of your pet for the person who will take them when you’re no longer around. You may wish for your pet to have a specific diet, visit a specific vet, receive specific grooming, enjoy a certain type of recreation, etc.
Trusts are also useful when you have some money set aside for your pet’s care. Leaving that money under trust means that the pet’s new caregiver or family will be given funds periodically (e.g. monthly) by the trust, instead of being given a lump sum directly by a will. Most importantly, the trust requires that there be a trustee to oversee distribution of funds for the care of your pet. This person can also attend to the proper preservation of the money. Lastly, the trustee has legally recognized powers to enforce the other specific instructions you’ve laid out under terms of the trust.
How Long Can a Pet Trust Last?
New York State law (codified in Estates, Powers & Trust Law, Section 1-8.1) allows for a pet trust to exist for the duration of the pet’s life. In other words, the legal “rule against perpetuities” that demands that a trust ends (after 21 years, for some states) does not apply in New York. This is sensible as some animals may well live for several decades, like a parrot, horse, tortoise, and so forth.
Key Features of a Pet Trust
A pet trust has the following important features:
- Grantor, who is the current pet owner
- Beneficiary, i.e. the pet
- Guardian, who takes over the daily care and custody of the pet
- Trustee, who holds the legal title of the assets under the trust meant for the pet’s care during its lifetime, and who ensures that the requirements of the trust are met (e.g. purchase of pet insurance, regular pet visits, special diet, etc.)
- Bank and/or investment account that holds money for the pet’s care, with the Trust as owner of the account and the Trustee having access to its funds
- Additional instructions regarding the care of your pet (e.g. that the Trustee visits the Guardian every month to check up on the care of the pet)
- Alternative or back-up Guardian and Trustee
- Remainder beneficiary, who is either an individual or organization (e.g. a charity) that inherits any remaining assets in the trust upon the pet’s demise
A pet trust can be created to take effect upon the grantor’s death but can also be inter vivos, which means it takes effect when the pet owner is still alive but is unable to care for the pet due to illness or incapacity, for example. This is not something a will can do as wills are testamentary, meaning they take effect only upon death. An inter vivos trust is also useful to ensure that the pet is cared for immediately by its guardian upon the death of the pet owner. This makes for clarity and a less traumatic transition for all parties concerned.
If You’re Single & Have A Pet, Don’t Wait
A pet trust isn’t difficult to set up, especially if you are clear about who will be its trustee and your pet’s guardian. For it to be legally enforceable, the trust document must be witnessed by two adults and signed by a notary. These are straightforward formalities.
But, as I say to my single clients, if you’re single and live alone, don’t procrastinate when it comes to any form of estate planning. Protecting your pet as laid out above requires planning and action. Perhaps you’ve got close friends and family members who are highly likely to take in your pet should anything happen to you. But remember this: you alone know what’s best for your furry family, and you alone can set out as many safety nets for them as is legally possible. It will mean immense peace-of-mind for you and, above all else, a safe and secure life for your pet should you no longer be around to take care of them.
We are, ultimately, responsible to and for those we love, including those who wear a coat of fur, feathers, or scales.
If you’ve found this blog post useful and would like to find out what would work best in your own unique situation, contact The Law Office of Robert J. Maher, P.C. for a complimentary 90-minute consultation.
(*Source: American Pet Products Association – 2017-2018 National Pet Owners Survey; Insurance Information Institute)