Gideon Rothschild, Esq., partner, now retired, with the New York City law firm Moses & Singer LLP. He is a past chair of the Real Property Trust & Estate Law Section of the American Bar Association. MosesSinger.com/gideon-rothschild
Fashion designer Karl Lagerfeld reportedly left a sizable bequest in his will to take care of his pet cat, Choupette, who has two maids, a driver, an iPad and a Dyson hairdryer. Other celebrities who have provided for their beloved pets include Michael Jackson ($2 million for his chimp, Bubbles) and Leona Helmsley (originally $12 million but reduced by a judge to $2 million for her dog Trouble). Readers who are concerned for the care of their pets have several options to consider, including establishing a pet trust, which is statutorily recognized in all 50 states and Washington, DC.
The pet owner should, of course, calculate the amount of money that will be needed to care for the pet, based in part how much longer the pet is likely to live after the owner dies. The owner also should choose the person who will be entrusted with the pet-care funds.
Under the laws of all states, a pet owner cannot leave an outright bequest to an animal. One option is to simply designate a caretaker for your pet and leave him/her a kitty (pun intended) to take care of the pet. The risk there is that the person may give the pet away and keep the money or may spend the money on other expenses or debts.
Another option, available in New York State, is to make a conditional bequest in which the pet and a monetary bequest are left to a person who has the obligation to care for the animal. Such a bequest, however, requires the executor to provide oversight to make sure that the beneficiary is discharging his/her duties.
A third option is to provide for a payment to a pet-care organization in exchange for its promise to provide care for the animal.
However, if the amount to be set aside is significant, providing for the pet through a pet trust might be most appropriate option.
A pet trust can be created either during the owner’s lifetime or at death under the owner’s last will and testament. The person designated as trustee will have custody of the funds, while another person (or the same person) is named as the caretaker. The statute in most states allows the trustee to also be the caretaker, but this negates any independent oversight over the use and application of the funds. The trust should require the trustee to periodically visit the caregiver’s home to ensure that the proper care is being given for the animal. It is also important to ensure that the animal is properly identifiable to avoid the possibility of fraud in which a caregiver replaces the animal with a similar one and continues to receive benefits.
If the amount of money to be left in trust is substantial and/or the duties of the caretaker or trustee are significant, consider providing for adequate compensation to both parties. In determining the amount to fund a trust, consideration should be given to the life expectancy of the animal, expenses of boarding and feeding as well as potential medical care. It should not be an excessive sum or else the court or the heirs may challenge it. For example, Leona Helmsley’s $12 million bequest to Trouble was cut back by the court to $2 million on the grounds that Helmsley was mentally unfit when she made her will.
The trust should describe the type of care desired for the animal. Trouble’s caretaker spent $100,000 annually on her care, which included $8,000 for grooming.
The trust should set forth a termination date since many states limit the trust term, which, if violated, may cause the trust to be invalidated. Subject to this rule, a pet trust might continue until either all the animals have died or upon a fixed date, whichever is sooner. Once the trust terminates, it must designate what happens to the funds remaining in the trust. Most pet trusts leave the remainder to a charity that benefits the type of animal cared for. It is not advisable to leave the remainder to the trustee or caregiver as this would present a conflict in caring for the animal.
One advantage of creating the trust during the owner’s lifetime is to enable a person to take care of the pet in the event of the owner’s disability or incapacity. It is advisable to name a backup caretaker in the event that the first person is unable or unwilling to take care of the animal.
Pet trusts can be enforced by the courts whereas an outright bequest generally is not. If an owner cannot find a person to take care of the pet, the owner can designate a charitable organization such as a shelter or humane society and leave a bequest to it.
Other steps a pet owner should consider include carrying a card in his/her wallet containing information about the pet and a document with instructions for caring for the animal in the event the owner becomes unable to. If no plans are provided for at the owner’s death, the animal will be left to an heir who may not have the desire or ability to care for the animal. It is therefore in everyone’s best interest to consider these options when planning the estate.
For more information, check out Gideon Rothschild’s website.