By Harry Shubin, Esq.
It is often said that the problem with loving animals is that you usually outlive them. Over the last six decades, I have outlived a dozen cats (and a dog) who were very loved, but at this point in my life I have shifted to thinking about what would happen if in fact I did not outlive our current crew of four felines. While it’s not something that’s pleasant to consider, in my 20th year of active involvement with various rescue organizations, I’ve lost count of the times we have rescued a cat whose person passed away or was suddenly unable to provide care. In many of those situations friends or family did what they could, but were not in a position to take on the cat.
I’m leaving you 12 million dollars in my will, along with my pet
About 20 years ago, famous hotel heir Leona Helmsley thought she had a solution for her dog, a Maltese appropriately named Trouble, when she provided 12 million dollars in her will for his care. Pets – though many of us think of them and treat them as family members – are viewed as property under the law, and accordingly you can will an animal to a caretaker after your death, and in that will provide money for the pet’s care. The problem with a will and this approach is that once ownership of the pet and the funds are transferred, it is not possible to enforce any restrictions, and the caretaker could drop the animal at a shelter (or worse) and spend the money on a tropical vacation.
And so, the trouble with Trouble, if you will, is that a will can be challenged by other potential heirs, such as the two grandchildren that Ms. Helmsley disinherited, who indeed sued to change the will. A judge agreed that $12M was somewhat excessive for the little Maltese, and reduced the amount significantly, to the benefit of the formerly excluded grandchildren. While apparently Trouble was still sufficiently wealthy to live at a Helmsley hotel for the remainder of his life, the specific wishes for his care, feeding and burial were not honored and there was no way to enforce Leona’s wishes.
A pet trust: a better alternative
In the last 25 years, a better option than a will has come into being for companion animal planning. Following the adoption of the Uniform Probate Code in 1990, and the Uniform Trust Code in 2000, now recognized in all 50 states and the District of Columbia, it is now permitted to establish a trust for the benefit of a companion animal.
A “pet trust” differs in several important ways from a will. Most importantly, a trust can become effective immediately at death or incapacity of the pet’s guardian, without a lengthy probate process, and can be enforced in the courts if the terms are violated. Typically, such a trust names a caretaker for the animal, and sets forth standards for care and provides the funds for such care. Each of these should be considered carefully in constructing a trust.
Seeking the advice of a professional is strongly recommended as each state has slightly different requirements. A professional need not necessarily be an attorney who specifically practices in the area of animal law. Those are few and far between, though certainly a good choice if available. Any attorney who is familiar with human wills and trusts in general can help set up a pet trust, since many of the same considerations are common to both and a professional will know to consider factors such as whether to name a specific animal in the trust, or to have the trust adapted to cover subsequently acquired pets. They will also know to consider factors including backup options, unforseeable future situations, and disposition of leftover funds.
Another reason to consult a professional in setting up plans for your pets is that a professional is familiar with durable powers of attorney, giving a caretaker power to manage finances and make care decisions for a human when that human is unable and can provide the same document enabling a caretaker to act immediately on behalf of a pet.
Although a trust can also be written to become active immediately if the animal’s guardian is deceased or incapacitated, a power of attorney naming someone other than the trust’s appointed caretaker could be advisable if the caretaker is out of the area or otherwise not immediately able to assume care in an emergency. In other words, while your next-door neighbor may not want to take on Mr. Tux’s care permanently, she may be quite willing to step in if you’re rushed to the hospital for emergency treatment.
Because each state’s requirements for a pet trust and powers of attorney may differ, the following presents high-level considerations of the above factors rather than state-specific language or provisions.
Elements to consider for a trust
Selecting a Caretaker
There has been a (mostly) unspoken understanding in my family that our adult children would take over care for our cats should something happen to us. In retrospect, that may not have been a reasonable option when we had eight cats, four of them of advanced age with various medical needs. Our son and daughter were not living in situations where even taking half the cats was possible.
Selection of a caretaker to be named in a trust should involve an assessment of whether that person has the ability – physically, space and living situation-wise, and emotionally – to take on care for the pets. Despite what you might have seen in movies where the heir is surprised to inherit a fortune from late Aunt Gertrude if they assume care for Whiskers, it is always best to have a thorough discussion with the potential caretaker to make sure that they are on board with the responsibility.
The discussion should be more than simply “will you take care of Fluffy.” It should involve talking about the financial resources that will be provided, and the expectations for care. Only once the caretaker knows what will be involved and consents can there be confidence that the trust will work as planned. A properly constructed trust would also consider back up caretakers if the primary caretaker is unable or unwilling to serve at any point.
Standards of care
It is both a benefit and a challenge that medical care and treatment of animals has advanced to a level near that of humans. Formulating the trust should involve contemplating what level of care for medical conditions is desired, and how that is to be funded.
Our children have seen us decide to perform daily blood glucose testing and insulin injections on a diabetic cat, as well as administer fluids multiple times a week. They have also have seen us decide to discontinue chemotherapy on a cat with cancer. As a result, I hope they have a sense of how making these decisions took into account the best interests of the cats.
With such a level of confidence, the trust can simply direct that medical decisions be made “in the best interests of the animal as determined by the caretaker,” but could also spell out specific requirements. In addition, the trust could (and probably should) set out expectations for daily care – should the cat be fed only canned or raw food? Kept indoors? Must the caretaker move into Tigger’s home so that he keeps access to his beloved catio? Again, all this should be discussed with the caretaker prior to finalizing the trust.
There is no such thing as a free kitten
One of the questions on the adoption application that the Feline Foundation, the rescue group I volunteer for, uses is “how much per month would you spend on medical care?” There is no wrong answer to this question, it is just a discussion point to manage expectations in an urban area where a well-care visit with lab work can easily cost $700 and a dental cleaning with extractions upward of $2,000.
How much money should be funded in the trust? There is no single right amount for a pet trust. It depends on your cat’s needs, age, health, and life expectancy, but generally, you can calculate your annual pet expenses (food, vet, grooming, etc.), add a buffer for emergencies/inflation, multiply by their estimated lifespan, and add more for advanced medical needs and end-of-life care.
Consider also whether to include caregiver stipends. The all-knowing internet suggests that common amounts range from $15,000 to over $250,000. Our cats would like to meet some folks at the upper end of that range! When funding the trust, of course cash is fine if you have it, but also consider other sources such as life insurance, retirement investments, and money from the sale of assets as the estate winds down. The trust can be designated as a partial beneficiary of insurance or investments, which could avoid the need for cash.
The trust should also provide direction on how funds are to be managed – should the caretaker invest them, hold them in a trust account, or retain a professional fund manager? In addition, what happens if all funds are spent? Does the level of care consequently have to be adjusted? Would the caretaker be willing to undertake care with the amount that can be provided and keep up that level of care if funds are exhausted? Funding of the trust and selection of the caretaker are related.
End of life decisions
After trusting the caretaker with decisions on the level of treatment to be provided at the end of a pet’s life or providing more explicit guidance, it is common for the trust to specify what happens to the animal after death.
Is Shadow to be buried, cremated, and her cremains interred with you? Our instructions are “toss the boxes of cremains in before they close our lid.” Leona Helmsley planned for Trouble to be at the family mausoleum; however, the Helmsley family cemetery did not permit animals to be kept there. End-of-life arrangements should not only be confirmed when the trust is established but as in other aspects of the trust, alternatives should be provided in case the desired option is unavailable.
Finally, the trust should contemplate what happens to any leftover funds when the last animal covered is gone. Do any remaining assets go to the caretaker, are they to be donated to charity, or to pass to relatives or other heirs?
The time is now!
There is an old Jewish proverb attributed to Rabbi Eliezer, who told his students “repent one day before your death”. His students asked, “but does a person know the day on which he will die?” Rabbi Eliezer’s answer: “all the more so, therefore, repent today, lest you die tomorrow”. None of us know when it will be our time, but by making preparation for the care of our beloved animal companions now, we can at least rest comfortably knowing that they will be cared for if the unexpected happens.
Harry Shubin is a member of the Board of Directors of the Feline Foundation of Greater Washington, and a practicing attorney with the boutique intellectual property firm Millen, White, Zelano & Branigan, P.C. Opinions expressed in this article are those of the author only, and do not constitute legal advice.
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