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.
Under US Law, Pets Are PROPERTY, Not Persons
If you’re like most pet owners, you’ve probably assumed that someone (a friend or relative) would take them in if you were no longer around. While this may be true for most pet owners, unless one is completely certain that a friend or family would care for one’s pet until its demise, it’s best not to make such assumptions.
US common law still considers pets our personal property rather than “family”. 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 be able to take care of it, the courts will have to decide what to do with them if those you know don’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, and 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 she 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 she 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 her for taking the best care of your pet.
In short, the person you entrust your pet to may have the best intentions, but if she is 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 as regards the care of your pet for the person who will take him/her over when you’re no longer around. You may wish for your pet to have a specific diet, visit a specific vet, and receive specific grooming and recreation etc..
Trusts are also useful when you have some of money set aside for your pet’s care — leaving that money under trust means that the pet’s new caregiver/family will be given funds periodically (e.g. monthly) by the trust, instead of being given a lump sum directly by 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 for? 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 (e.g. parrots, horses, turtles).
Key Features Of A Pet Trust
A pet trust should have the following important features:
- Grantor – the pet owner
- Beneficiary – the pet
- Guardian – the person who takes over the daily care and custody of the pet
- Trustee – the person holding 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 (back-up) guardian and trustee
- Remainder beneficiary – the person 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 i.e. it takes effect when the pet owner is still alive but is unable to care for the pet due to, for example, illness or incapacity. This is not something a will can do as wills are testamentary (i.e. 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 concerned.
If You’re Single And 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, a safe and secure life for your pet should you no longer be around to take care of him or her.
We are, ultimately, responsible to and for those we love, including those who wear a coat of fur or feathers or scales.
(*Source: American Pet Products Association – 2017-2018 National Pet Owners Survey)