…and to my Malti-Poo Madison, I leave…..

First of all, let’s get a few things clear. I am not a lawyer and cannot give legal advice; so I’m not. Secondly, I am not necessarily an humaniac. Lastly, I am a guy who after giving away a S**T TON of money in a divorce, was named as executor of my ex-wife’s estate, gave away my money a second time and got the dog back. There is a country western song in there.

So scooting around Facebook I see one of my sister-in-law’s multiple posts about rescue animals and began to wonder about the desires of the “Pet Parents.” Each year between 5 and 7 million companion animals are placed in animal shelters after their owners die. Shelters are unable to place 3 to 4 million of those animals and, as a result, have no choice but to euthanize them.

The American legal system treats pets as property. Those who have a pet, myself included, know that our pets are much more than property. I care a lot more about Madison than I do some of the people in my life, despite them both being equally annoying to clean up after.

In the United States, nearly 80 million households have a pet and 95% of those households believe that their pet is a member of their family. For one reason or another, people tend not to plan for what happens after their death. Just because people don’t plan for what happens to their pet if they die or become incapacitated, doesn’t mean that they can’t.

The Solution

In 1990, a section validating trusts for domestic animals was added to the Uniform Probate Code (UPC § 2-907). This marked the first time that it became legal to leave your pet money. A pet trust provision was adopted by the Uniform Trust Code in 2000 (UTC § 408). The laws governing trusts and estates are determined by each state. Although most states have adopted at least parts of the Uniform Trust Code or Uniform Probate Code, some simply use them as a model to create their own statutes.

When the Governor Mark Dayton signed H.F. No. 1372 on May 22, 2016, Minnesota became the 50th state to authorize statutory pet trusts. The statute, MN ST § 501C.0408, was based on the Uniform Trust Code and took effect on August 1, 2016.

It is very important to reiterate that although each state has some type of statute that enables you to provide for the care of a pet if you become incapable of doing so or die, the statutes are not identical.

The How To

Simply to demonstrate what a pet trust could look like, I will use Georgia law. This case was chosen scientifically, due to it being the first thing that popped up in a Google search. In a recent “wrongful death” case regarding a family dog, the Georgia Supreme Court upheld Georgia precedent that no matter how sentimental a pet may be, pets are property. There is no way to provide for property in a will and that is why a pet trust is the best option.

The statute regarding pet trusts in Georgia is O.C.G.A. § 53-12-28 and was enacted in 2010. Basically, the statute says that a trust may be created for the care of an animal or animals alive during the settlor’s lifetime. The trust terminates upon the death of the animal, or upon the death of the last surviving animal covered by the trust.

This is how this would work according to Estate planning attorney Bob Google, Esq. He discussed a few things that should be considered when creating a pet trust in Georgia, such as:

1. Choosing Someone to Act as Trustee. This would be my sister. I would speak with her first and make sure she was both willing and able to do carry out the instructions laid out in the trust.
2. Choosing a Successor Trustee. If my sister was unable to act as trustee, my next choice would be my dad.
3. Choosing Caregivers. Some people elect to name a financially responsible individual as trustee and another person as a caregiver for their pet(s), I would not.
4. Providing Identification Information. Simply to help prevent fraud and ensure that the process goes as smooth as possible I would include photos, microchip ID numbers, etc. to identify Madison.
5. Giving Care Instructions. I would provide details regarding the care of Madison, such as how often she should be taken to the vet for check-ups, nutritional requirements (she is allergic to chicken), and any other healthcare information.
6. Establishing How Much Money is Needed to Care for the Pet(s). You need to be realistic because large amounts left for pets could be subject to a challenge from other heirs*. In my case, I do really have much to leave to cover this for an extended period of time, but let’s not get crazy here.
7. Selecting a Beneficiary. When the last pet you have provided for in your pet trust dies, the leftover funds in the trust have to go somewhere. l is the only pet in this trust, when she dies I would leave the rest of my pretend fortune to my children.
8. Supplying Final Instructions. I would leave it up to the trustee/caregiver to decide if he should be cremated or buried.^

*^Both of these issues came up in the 2007 case of a New York trust fund created by wealthy hotelier Leona Helmsley for the benefit of her Maltese dog, Trouble. The trust fund was valued at $12 million. Following challenges from two her grandchildren, a court reduced the sum to $2 million. She also left instructions for Trouble to be buried with her upon its death. New York state law prohibits animals from being buried with humans in a cemetery (this law changed in 2016), so Trouble was ultimately cremated.

Another socialite, Gail Posner—daughter of the guy who invented "hostile corporate takeovers"—left $3 million and a house worth $8.4 million to her three dogs after her death. Her son, who was left $1 million, disputed the will immediately, claiming conspiracy by Posner's staff, who received a total of $27 million to, among other things, take care of the dogs.

Apparently, leaving your riches to your pets—for their well-being, and maybe also to spite your family—is widely practiced among well-off pet owners. I reached out to Bob Google, Esq., once again, a law professor at Internet U. and pet trust attorney (yes, that's a real thing) to find out how it's done.

After reading all of that, you may be asking “why can’t I just write it in my will or just tell my sister to take Madison?”

What follows is part of an interview with a “Pet Trust” attorney (yes, they exist).

So how is a pet trust different from just writing “everything goes to my snail, Rocket,” in my will?

The deal with creating a pet trust is you want it to be legally enforceable, so you can make certain that that money is actually used to take care of a pet. In a “traditional pet trust,” you tell the trustee to help the person who is providing care to your pet after you die by paying for the pet’s expenses according to your directions [as well as specifying how much is paid per year and what the money can be spent on]. What you’re describing is a “statutory pet trust,” which is just a provision in a will. It doesn’t require the pet owner to make as many decisions regarding the terms of the trust. Usually, the state will fill in the missing parts to a pet trust, making sure the money is spent on the pet.

That sounds easy enough.

It’s a very primitive method and not one I would recommend, unless the estate is small. You’d sooner want a “traditional pet trust” where you actually name the caregiver of the animal, the person holding the money, how much to reimburse for expenses, plus an additional amount to “encourage” their help. The trustee would also make random inspections at the caregiver’s home to make sure the animal is well treated. You’re not relying on hope or trust; you’re relying on a legally enforceable obligation.

Although I highly recommend seeking out a lawyer in your state to assist you in making arrangements for your pet, attorney Rachel Hirschfield created the Pet Protection Agreement? pet trust and The Hirschfeld Pet Trust?. You can read about those options on https://www.pettrustlawyer.com/

The cases and examples used in this article were only to demonstrate the concepts that were being discussed. This article does NOT contain any legal advice.