We’ve all heard about the $12 million dollar Trust fund established by wealthy heiress, Leona Helmsley, for her pet Maltese, ‘Trouble’ (who lived up to his name when he a housekeeper).
Helmsley, a billionaire, left the bulk of her estate to a Charitble Trust and just $5 million each to all but 2 of her grandkids who she disinherited. Needless to say, the family has initiated a lawsuit to challenge the pup’s trust fund.
As the media focuses on the feud between the heirs and the dog that bit them, the bill for court costs, attorney and probate fees and the expenses of administering the Trust continue to pile up. Ultimately, the legal price tag may exceed $60 million dollars!
It looks like Helmsley really screwed the pooch this time!
Many LGBTQ people love our pets as though they are our children. If you have pets and are concerned about what will happen to them if you get sick or die, we have outlined a few things you might want to consider as you make your estate plan.
The following 3 step plan will ensure that your pets will be cared for in any event:
1. Make provisions in your Will and/or Trust to provide effectively for the comfort and care of your pet(s).
2. If you are making a Will but not a Trust, make arrangements, in advance, to protect your pets during the interim period between your death and the admission of your Will to probate. Too often this period is not considered. Although a Will can make provisions for the care of the pet, unless you have a Living Trust, no action can be taken by the Personal Representative to carry out these provisions until the Will has been admitted to probate and the Personal Representative has received the authority to proceed by the issuance of letters testamentary. The time between death and the authority of the Personal Representative to act can vary between several weeks and several months. Plans must be made to ensure care for your pets during this interim period.
3. Make advance arrangements to ensure your pets will be cared for in the event of an extended illness hospital stay.
You should find a friend or relative willing to care for your animals in the event you’re your partner dies before you (or if you do not have a partner). The matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. The person who will receive an animal as the result of a bequest in a Will or Trust should understand that he or she becomes the animal's owner and, as such, has all the rights and responsibilities of ownership.
You should add the appropriate language in his/her Will or Trust to ensures the animal will be left with the caretaker you have selected. It is best to name alternate caretakers in the Will or Trust in case the first-named person is unable or unwilling to take the animal when the time comes.
“I give my [cat, Ginger], and any other animals which I may own at the time of my death, to [Mary Smith], presently residing at[address], with the request that she treat them as companion animals. If she is unable or unwilling to accept my animals, I give such animals to [John Doe], presently residing at [address] with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, my Personal Representative/Successor Trustee shall select an appropriate person to accept the animals and treat them as companion animals, and I give my animals to such person.
I direct my Personal Representative/Successor Trustee to give [$_] from my estate to the person who accepts my animals, and I request (but do not direct) that these funds be used for the care of my animals.”
Another alternative is to give the Personal Representative/Successor Trustee the discretion to select from among several caretakers prearranged and named in your Will or Trust.
“My Personal Representative/Successor Trustee shall give [my dogs] to one or more of the following persons who agree to care for such [dogs] and to treat them as companion animals:
[Mary Smith], presently residing at[address];
[John Doe], presently residing at[address];
[James Smith], presently residing at[address].
My Personal Representative/Successor Trustee shall have the discretion to select one or more of the persons named above to receive one or more of the [dogs]. If none of such persons are willing or able to take the [dogs], my Personal Representative/Successor Trustee shall have the discretion to give the [days] to another person or persons who agrees to care for such [dogs] and to treat them as companion animals.
My Personal Representative/Successor Trustee shall give [$ ] to each person selected by my Personal Representative/Successor Trustee and who accepts one or more of my [dogs].”
Providing Funds for Pet Care
Under the laws of all 50 states, a you cannot leave any part of your estate outright to an animal. However, you may leave a sum of money to the person designated to care for the pet, along with a request (not a direction) that the money be used for the pet's care. It is important for you to select a caretaker you trust and who will be devoted to your pets, because the caretaker has no legal obligation under the above provision to use the money for the purpose specified.
You should leave only a reasonable amount of money for the care of any pet. A large sum of money may prompt relatives to challenge the Will or Trust and the court may invalidate the bequest for pet care. You may want to include an "in terrorem" clause in your Will or Trust to reduce the chance of a challenge to the Will or Trust. This clause provides that if a person unsuccessfully challenges a provision in the Will or Trust, he or she cannot then receive property under any provision of the Will or Trust.
Designating a Shelter or Charitable Organization to Care for Pets
If no friend or relative can be found to take the pet, the you should look for a charitable organization whose function is to care for or place companion animals. A humane society or shelter might agree to accept the animal along with a cash bequest to cover expenses.
The charity should agree to take care of the animal for its life or find an adoptive home for the animal. Before selecting a shelter, find out what kind of care animal receive at the shelter (for example, an animal should not have to stay for more than a short period in a cage). If the organization is directed to find an adoptive home for the companion animal in its care, you should obtain detailed information about the adoption procedure.
“Give all of my [dogs' cats, and other animals] to the [Humane Shelter], presently located at [address], with the following requests:
…that the [Humane Shelter] take possession of and care for all my animals and search for good homes for them;
…that until homes are found for my animals, the animals be placed in foster homes rather than in cages at the shelter;
…that if it is necessary to keep some of the animals in cages while making arrangements to fend permanent homes, in no event should any animal stay more than a total of 2 weeks in a cage;
…that each animal should receive appropriate veterinary care, as needed;
…that after attempts have been made for 3months to place an animal, my [son], presently residing at [address], be contacted if it is not possible to place an animal so that he can assist with finding a home for the animal;
…that the shelter make every effort to assure that none of my animals are ever used for medical research or product testing or painful experimentation under any circumstances;
…that, after placement, shelter personnel make follow-up visits to assure that my animals are receiving proper care in their new homes.
If the [Humane Shelter] is in existence at the time of my death and is able to accept my animals, I give [$_ to the Humane Shelter]If the [Humane Shelter] is unable to accept my animals, I give my animals and [$ / to one or more similar charitable organizations as my Personal Representative/Successor Trustee shall select, subject to the requests made above.”
Making a Conditional Bequest
New York and some other states allow the you to make a "conditional bequest" in which both the animal and a sum of money are left to a beneficiary who must use the money for the care of the animal.
A conditional bequest has the advantage of requiring the recipient to care for the pet but adds to the Personal Representative/Successor Trustee's responsibility the task of ensuring that the person receiving the money fulfills his or her commitment. Therefore, you must select a Personal Representative/Successor Trustee willing to undertake this added responsibility. If you want a conditional bequest, the relevant law in your state must be taken into consideration when drafting this language to ensure the provision for pet care in not later invalidated by the courts.
Establishing a Trust for Animals
Under the law of most states, an animal cannot be made the beneficiary of a trust. In a few states, persons can create trusts for animals, but such trusts are honorary, i.e. unenforceable in the courts, and effective only if the trustee chooses to abide by the terms of the trust instrument. However, a small but growing number of states, including New York, have enacted statutes so that trusts for animals can be created and can be enforced in the courts. Trusts in these states are not honorary even though they may be referred to as such.
In all states where a trust for animals can be created, the trust cannot exceed 21 years, even if the life span of a particular animal is longer. The trustee appointed in the trust will be directed to the trust instrument to use the funds in the trust to care for the animals. If the trustee cannot take physical possession of the animals, a separate person should be named as the caretaker.
In the states where trusts for animals are not permitted, a trust for human beneficiaries can include a provision that the trustee may use trust property to pay for the care of animals, as payment for such care benefits the human beneficiaries.
Providing for Euthanasia if Caretakers Cannot be Found
Provisions in a Will or Trust directing that an animal be euthanized upon the death of its owner have been invalidated by the courts. While you may feel it is important to protect your pet from subsequent mistreatment or a "bad home," it is questionable whether a healthy pet's life must end by euthanasia when its owner dies. Nevertheless, if a you wish to provide for euthanasia, it is preferable to specify in a Will or Trust that the pet be cared for by the Personal Representative/Successor Trustee or a friend for a period of time and ask that this person attempt to find a good home for the pet, and if no home is found after a specified reasonable period of time, that the animal may betaken for euthanasia. A court may be less likely to overturn such a provision.
An alternative is to write a letter to a friend or relative stating that upon your death, the animal should be euthanized. (A signed copy should be given in advance to the friend or relative and another signed copy should be held with the Will or Trust but not made part of the Will or Trust). The letter is not legally binding and the friend or relative is not obligated to carry out your instructions.
Euthanasia performed pursuant to a letter from you is also subject to court challenge.
It is preferable that permission of those relatives or other persons or charities who take the balance of the estate the residuary beneficiaries-be obtained before any animals are euthanized, as the residuary beneficiaries could complain that the animal is part of the estate property and should pass to them. This is unlikely, but it has happened.
It should be noted that if you bequeath your animal to a friend or relative, that person becomes the owner and has all the rights and obligations of the pet's care, including the right to euthanize the animal.
“My [cat, Ginger], shall be delivered to[Mary Smith or John Doe] for temporary holding. The Personal Representative/Successor Trustee shall determine the amount from the estate to go with the animal for such temporary care and feeding. The Personal Representative/Successor Trustee shall advertise and otherwise make diligent efforts to find a good home for the animal, taking a reasonable amount of money for these purposes from the estate. If no home can be found after [ ] months, the animal shall be taken to [name and address of veterinarian] to be euthanized by the most humane method the veterinarian has competency to use.”
Providing Funds for Pet Care During Transitional Period
Finally, a provision which should be included in all Wills or Trusts where an animal is involved, is one allowing the Personal Representative/Successor Trustee to use estate funds to care for the animal for the period before the animal goes to the new home designated by the you. The Will or Trust should state that the costs of food, veterinary care, transportation and other expenses incurred by the Personal Representative/Successor Trustee in caring for your pet is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes.
If you are using a Will only, short-term arrangements for care of a pet are necessary to cover the period between your death and the issuance of letters testamentary or letters of administration. These letters give the Personal Representative or Administrator authority to act, but depending on the jurisdiction, it may take from two weeks to two months to obtain them. Short-term arrangements are also necessary if the owner is hospitalized for a period of time.
“I direct my Personal Representative/Successor Trustee to pay, as an administration expense' all expenses associated with the feeding and care, including veterinary costs, of my [dogs and cats] until the animals are placed with the persons that I (or my Personal Representative/Successor Trustee) have selected to care for the [dogs and cats] for the duration of their lives, whether or not these expenses are deductible for estate tax purposes.”
Arranging for Friends/Relatives to Provide Short-Term Care
You should try to find a friend or relative who is willing to take care of your pets during these periods. You should leave word, preferably in writing, at home and with a neighbor, or with the building management and/or superintendent for the friend or relative to be notified. You should arrange for access to your home to permit the care and feeding of your pets during such short -term periods. If an apartment is involved, you should consider leaving a key with the superintendent or a neighbor. If there is a relative or friend in the area, you should consider providing that individual with a key and with written permission to the building management to enter the apartment in the event of your death or hospitalization.
Arranging for a Shelter or Charitable Organization to Provide Short-Term Care
There may be an animal shelter or charitable organization with which you can make arrangements – in advance -- to care for your pet in the event of your death or hospitalization. Should you make such arrangements, shelter personnel would need written instructions addressed to the superintendent or building management and the key to permit them access. Similarly, you should leave written instructions in your home and with a relative or friend to notify the shelter (if a shelter is chosen) or the individual who has agreed to take care of the pet during this period.
Once you have decided upon such arrangements for the short-term care and feeding of the pet in the event of the pet owner's hospitalization or death, you should carry a copy of the instructions as part of your identification papers in the event of sudden hospitalization or death due to an accident or illness.
Sample Note to Carry in Wallet Regarding Emergency Care of Pets:
“In any situation in which I am unable to return home to feed my pets, such as my hospitalization or death, please immediately call [Mary Smith] at [address and phone] or [John Doe] at [address and phone], to arrange for the feeding of my [cats] located in my home at [address]. The superintendent of my apartment building [name, address and phone], my Personal Representative/Successor Trustee [name, address and phone], and my neighbor [name, address and phone] have a copy of this document.”
Providing Copies of Instructions to An Personal Representative/Successor Trustee
Finally, in the event of death, and to cover the interim period while letter testamentary are being obtained, the Personal Representative/Successor Trustee named in your Will or Trust should also be given copies of all applicable instructions.
Finally, the best way to assure proper care for your pet is to make long-term (final) and short-term arrangements for your pets now – either through your Will and/or Trust or in letters of instructions and other arrangements as discussed above.
Making these arrangements may entail a significant amount of effort on your part, but is important so that your animal is cared for in the event of your hospitalization, incapacity or death.