It's important to consider your pet when planning out your will. What would happen if your dog or cat outlived you? Estate planning might be the solution for you and your pet.

When tobacco heiress Doris Duke died in 1993, she made headlines by leaving a $100,000 trust fund for her dog. That sum pales in comparison with the $12 million that real estate magnate Leona Helmsley left for the care of her beloved pet. And when singer Dusty Springfield died in 1999, her will directed that her cat, Nicholas, was to be fed only his favorite imported cat food, that his bed was to be lined with her nightgown, and that her recordings were to be played to him every night at bedtime.

While these are unusual cases, pet owners are showing increasing concern about the care of their animal loved ones if their pets should outlive them or if they become incapacitated and unable to care for them. Fortunately, with proper planning and a lawyer’s help, you can provide for your pet’s care even if you’re no longer around or can no longer provide that care yourself.

The simplest way of providing for your pet’s care in the event of your death is to provide in your will that ownership of your pet shall go to a particular person. However, there is a drawback to this approach: Even if you leave a certain amount of money to the caretaker you have designated for the care of your pet, there is no practical way of assuring that those funds will be used for their intended purpose or that your specific instructions concerning your pet’s care will be followed.

Trust fund canines (and felines)

A more complicated – but more secure – way to provide for your pet’s care is through a pet trust. The idea is simple: you designate a caretaker to look after your pet in the event of your death or incapacity, and a trustee to make sure that trust assets are used for the care of the pet and to generally look over the caretaker’s shoulder. You then fund the trust with whatever amount of money you have decided is appropriate for your pet’s future needs.

Types of trusts

You can provide for such a trust in your will. This is known as a testamentary trust, and it takes effect after your death. Alternatively, you can create a trust while you are still alive. This is known as an inter vivos trust. The advantage of an inter vivos trust is that it can provide for the care of your pet while you are alive but incapacitated, whereas the testamentary trust comes in to effect only in the event of your death. The downside of the inter vivos trust is that it involves more upfront legal and administrative expense.

The testamentary trust is the less expensive option. However, it does nothing to provide for care of your pet if you are disabled. In addition, there may be a gap in care while your will is being probated. If you choose this option, you may want to give a trusted friend or family member a durable power of attorney, authorizing him or her to care for your pet in the event you are unable to do so.

Traditional vs. statutory trusts

Here is where things get a bit complicated. Traditionally, an animal could not be the beneficiary of a trust because an animal is, well, an animal. The result of this rule was that a trust having a pet as a beneficiary was not enforceable in court to the same degree as a trust with, say, a child as a beneficiary. However, in recent years, many state legislatures have enacted statutes specifically recognizing the validity and enforceability of pet trusts. Pet trusts set up in those states are called statutory trusts.

According to a recent article by Gerry W. Beyer, a law professor at Texas Tech University School of Law, 40 states plus the District of Columbia now have pet-trust statutes, and there is pending pet-trust legislation in most of the remaining states. These statutes greatly simplify the steps needed to create a pet trust. In non-statutory pet-trust states, a carefully worded traditional trust can usually be created that will accomplish the same purpose, although the technical legal requirements are different.

Taking action

First, you should consult with an estate-planning attorney to find out whether your state has a provision for statutory pet trusts and, if not, what the law is in your state. Whatever legal means you use to provide for your pet’s care, you should be sure to include, at minimum, the following information in the trust documents:

• Clear identification of the pet(s); this may include distinctive markings, age, sex, and breed. You might wish to consider microchip implantation and/or DNA identification.
• Specific, detailed care instructions: Is there a particular food that your pet prefers? How often should your pet be fed? Walked?
• What about medications? Food allergies? Medical conditions that require special care?
• Name, address, and telephone number of your pet’s veterinarian.

And make sure that those people on whom you are relying to carry out your wishes have access to your estate planning documents and pet care information.

Remember: a pet trust is a legal document that should be prepared by a qualified attorney who appreciates the importance of your pet in your life. Taking the necessary steps now to ensure that your pet will be well cared for will give you peace of mind.

Reviewed by Amy I. Attas,V.M.D.

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