By Ronald A. Fatoullah, Esq.
When we speak of our family members, we generally refer to our husbands, wives, partners, children, grandchildren, etc. We work towards creating an estate plan to transfer assets, wealth, and cherished items to our loved ones, and sometimes even establish a system of care for those who require assistance in looking after themselves. However, often overlooked are our four-legged family members. Pets are universally loved and, according to a 2024 study conducted by the American Veterinary Medical Association, 78% of U.S. households (or approximately 102 million families) include at least one dog or cat, and another 9% of households include fish, reptiles, birds, small mammals, rabbits, horses, and fowl as pets.
Pets are every bit as integral a part of our lives as our two-legged family members, and as such, one can and should provide for one’s pet(s) as part of one’s estate plan as well. Although providing for a pet in a Will has long been recognized, the time it takes to probate a Will, have a fiduciary appointed and gain access to the decedent’s residence, in addition to the unknown of such a future fiduciary being available, the potential for a Will Contest (even if unrelated to the pet) or the Will being thrown out by the Court may place your pet in jeopardy and leave your pet without the necessary care, home, maintenance and/or food and other provisions that the pet will require to live. Although perhaps closer to us than other family members, pets are deemed to be ‘property’ under the law in all fifty states. Thankfully, due to the creation and codification of Pet Trusts in New York’s Estates, Powers and Trusts Law (“EPTL”) Section 7-8.1, a trust can be created and funded for one’s pet during one’s lifetime or can be created as a testamentary trust in one’s Last Will & Testament. One benefit of providing for your pet in a Pet Trust during your lifetime is that it will take effect immediately upon death, thus avoiding the time and delay of probate and ensuring there will be no gap in providing the requisite care for your pet.
Similar to other trusts, an individual(s) (the “Trustee”) is nominated to carry out the terms of the Pet Trust for the pet’s benefit for a specified period of time or for the remainder of the pet’s lifetime. Some pets, such as macaws, can live for decades if not for over a century, and they often survive their owners. Upon creating and funding the Trust, the pet owner (the “Grantor”) may dictate all of the specifics and wishes relating to the care of his/her pet, including: the funds in the Trust, who should be named as caregiver(s) and successor caregiver(s), what expenses should be paid for, the type and level of care, the maintenance and comfort that is desired for the pet, and what should happen to the pet and the assets remaining in the Trust after the pet’s death. The Trust should also be flexible enough to account for subsequent pets, as the Grantor may own several pets or may acquire additional pets after the trust was executed. For this reason, it is best to tailor the individual’s trust to his/her pets generally, instead of specifically naming pets individually. After the pet dies, the Pet Trust will typically terminate and the balance remaining in the Trust will be distributed in accordance with the wishes of the Grantor.
In New York, a court may reduce the amount of the property transferred into the Trust if it determines that the amount transferred is substantially excessive considering the care, intended uses and lifespan of the pet, among other factors. The most prominent case addressing this issue surrounded Ms. Leona Helmsley who left her “beloved” dog (a Maltese named ‘Trouble’) twelve million dollars in trust. The Court subsequently decided that this amount was excessive in comparison to Trouble’s needs and reduced Trouble’s Pet Trust to two million dollars.
For the majority of the population, such a reformation by the Courts will be unlikely and the focus should be on naming the appropriate individuals as trustees, caretakers and successors of your pet(s) and ensuring that such individuals are apprised of your pets, their needs and your wishes with respect to your pets’ care, both current and in the future. Make sure your wishes are in writing and be specific. You may think your friends, family members or caretakers know your pets and your wishes, but caring for your loved ones, whether two or four legged, should never be left to chance, just as it should not be presumed that your desired agent will be willing to serve as caretaker and/or trustee. Therefore, it is important to discuss in advance your wishes for your pet with your trustee and your desired agents and have contingency plans in place. While the caretaker and trustee may be the same person, pet owners should consider designating separate people as caretakers and trustees so that there are checks and balances in place to best ensure that the trust’s assets are properly spent on their pets, and that their pets are taken care of as specified and intended by the pet owner.
The attorneys in the Elder Law Practice Group at Meltzer, Lippe, Goldstein & Breitstone, LLP are available to assist in creating and managing every aspect of a Pet Trust to protect your beloved animal family members.
Ronald Fatoullah, Esq. Chairs the firm’s Elder Law Practice Group and is a Partner of the firm’s Trusts & Estates Practice Group.
This blog posting is for informational and educational purposes only. It is general in nature and not person or circumstance specific. This blog posting is not intended, nor should it be construed as rendering independent investment, legal or tax advice. It may but does not necessarily constitute attorney advertising.