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    September 06, 2024

    A Fiduciary for Fido: Pet Trusts and End-of-Life Planning

    Maggie Roberts
    The PDF, which includes endnotes and footnotes, in which this article appears can be found in Bifocal, Vol. 45 Issue 6.

    This article uses the terms "pet" and "animal" interchangeably, while recognizing that not every animal for which a person might choose to create a trust—such as a working animal—is a "pet."

    For some, the term "pet trust" may conjure real estate mogul Leona Helmsley and the $12 million trust, reduced by a judge after Helmsley's death to a $2 million trust, she created for her pampered Maltese, Trouble. While touted by the tabloids as a beyond-the-grave example of Helmsley's storied vindictiveness—Helmsley left nothing to two of her grandchildren, after all—attorneys may find many of their aging, pet-owning clients, including clients situated in far lower tax brackets than Helmsley, sympathize with Helmsley's desire to ensure Trouble still had everything she needed (and more) after Helmsley's death. For aging pet owners, particularly those without trusted younger people in their lives well-situated to care for a pet, the fates of their pets after they can no longer care for them can constitute a tremendous source of anxiety. A pet trust is a tool that can help alleviate this anxiety.

    Benefits of a Pet Trust

    A pet trust provides two main benefits: it removes or lessens the financial burden a pet may place on a designated caretaker, and it allows the settlor to dictate, in enforceable and detailed terms, the type of care her pet will receive after she dies or otherwise becomes unable to care for her pet. The former proves particularly important when a pet has expensive special needs and/or when a preferred caretaker lacks funds. The latter is particularly important when the settlor does not know who will care for her pet after she no longer can, or when she doubts a particular caretaker can be trusted to abide by her wishes for her pet's care. 

    Pet trusts are not the end-all-be-all of pet-focused estate planning; the control a pet trust affords will not be worth the expense for many clients. Designating a responsible family member or friend as a pet guardian via will is sufficient for many owners.

    Enforceability of a Pet Trust

    A “pet trust” may refer to a traditional trust, in which the beneficiary is a human who cares for a pet, or a statutory pet trust, in which the beneficiary is the pet itself. When properly designed, traditional pet trusts are enforceable, though they are often more cost- and labor-intensive to create than statutory pet trusts. A traditional pet trust may be preferable to a statutory pet trust in some circumstances—for instance, when a settlor considers the caretaker a more appropriate beneficiary than the pet itself.

    This article focuses on statutory pet trusts. Currently, every state code provides for statutory pet trusts. This article relies heavily on the pet trust provisions of the Uniform Probate Code (UPC) and the Uniform Trust Code (UTC), which many state codes follow closely. A practitioner should, of course, familiarize herself with the nuances of her particular state statute and related case law when designing a pet trust.

    Both the UPC and the UTC exempt pet trusts from the Rule Against Perpetuities and provide a pet trust terminates upon the death of the last surviving designated animal.

    Components of a Pet Trust

    • Designated animal(s) (alive during the settlor's lifetime). The designated animal(s), sometimes call the “animal beneficiary,” is the reason for the trust. In a trust instrument, descriptors beyond a pet's name, such as microchip numbers and physical attributes, can help ensure proper identification of a pet. A person’s pets can also be designated as a class, though a class designation can cause complications when ownership of an animal is ambiguous. 
    • Settlor. Like any trust, a pet trust needs a settlor—most likely the owner of the designated animal(s).
    • Trustee. Again, like any other trust, a pet trust must have a trustee in charge of managing the trust according to the settlor's desires. The trustee may be the same person as the caretaker. A court can designate a trustee if necessary.
    • Caretaker. The caretaker is the person designated to care for the pet – as noted, the caretaker and the trustee may be the same person; however, assigning these roles to different people may help protect the pet’s interests. If your client does not have someone in her life willing or able to serve as caretaker, you can help her search for a nonprofit that will serve as the pet's caretaker, either caring for the pet itself or finding the pet a new family. If your client does decide to use a nonprofit to fulfill the caretaker need, you should do your due diligence in investigating the reputability of the nonprofit.
    • Trust Enforcer. Because an animal cannot go to court to enforce a trust, the UPC and UTC allow a settlor to designate a pet trust enforcer. This person enforces the terms of the trust on the animal's behalf. If the settlor does not designate a trust enforcer, the court can appoint someone to fill this role. Some states allow a third party with an interest in the animal’s welfare to petition the court to either remove a trust enforcer or appoint a trust enforcer.  
    • Property. The following factors affect the appropriate amount and type of property for your client to place in her pet's trust: your client's net worth, other demands on her finances, the cost of maintaining the trust, and need. Need may depend on the age and species of the animal and the animal's lifestyle, among other factors.

    Significantly, both the UPC and the UTC—and therefore the state codes closely following these models—allow a court to reduce the amount of property in a pet trust if the court deems the designated amount excessive. Hence, the $10 million reduction in Helmsley's case.

    Other Considerations

    • Because a pet trust involves the care of a living being, a settlor should only assign roles in the trust to people willing and able to take them. No one should be surprised when a pet trust goes into effect. While the settlor is living, the trust should be reevaluated as circumstances change—if an adult child designated as caretaker for your client's cat later becomes a parent to a child severely allergic to cats, it would make sense to amend the trust. As noted, if a caretaker cannot be found, a nonprofit may be able to fill this gap.
    • Ensure your client outlines the important aspects of her pet's care in the trust instrument. Some aspects of the pet's routine that may seem obvious to your client may not be obvious to a caretaker.
    • While the trust should be specific, it should also be flexible, giving the trustee the ability to adjust to changing circumstances. A pet is a living being, so its needs are bound to evolve over time.
    • Other provisions of a pet trust may include: instructions for end-of-life care for the pet (when should euthanasia be considered?) and instructions for the disposition of a pet's remains.

    Sources/Further Reading

    Maggie Roberts

    Georgetown Law Graduate

    Maggie Roberts is a recent Georgetown Law graduate and a Board Director for RedRover, a nonprofit that helps keep people and their pets together in the face of domestic violence and natural disasters.

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