For many people, their pets are the nearest and dearest “property” they own. (Sorry, Fido, under law, your property, not people. I know. I know.) Nonetheless, they are often overlooked or given short shrift in the estate planning process.
Although pets are legally property, at least one New York court has expressed what to pet owners is obvious: “Companion animals are a special category of property,” noting also that they “are afforded many protections under the law” and that other courts have recognized the “cherished status” of companion animals. Feger v. Warwick Animal, 59 A.D.3d 68 (2d Dept. 2007) (internal citations omitted). (Feel better, Fido?)
The best means by far of protecting your pets in case of your death or incapacity are practical rather than legal in nature. Do you live with several other family members? You can presumably depend upon them to care for your animal if you are incapable. But if you live alone, additional measures may be appropriate. Does a close friend or family member have a key to your home in case of emergency? Ask that person to be responsible for caring for your pet in case of need. If he or she for some reason is not the right candidate for the role, tell them who is, and make sure that both individuals are amenable to your plans. They should have each other’s contact information. Does your pet have special medical needs or dietary restrictions? Type them up and stick the information on your refrigerator. Be sure to include your veterinarian’s name, phone number and address.
Another practical measure to help safeguard your pets’ health is to carry a laminated card which can alert emergency medical personnel that pets live in your home. Of course, the card should include any pertinent names and numbers of family or friends who can intercede and care for your animals. A sticker on a window or door alerting firefighters that a pet is in the home has saved more than one pet’s life.
Next consider how you can provide for your animals in your estate planning documents. Historically, a popular will provision has been to give the animal to a close friend or family member, together with sufficient funds for the individual to see to the pets’ needs for as long as the pets survive. Specify in the will that the money is to be used for that purpose. If the first-named friend refuses to accept the pet and the money, your will may provide for an alternate who hopefully will be more accommodating. The friend or family member can retain any remaining funds once the animals are no longer living. Although this arrangement is not considered legally binding (your friend can spend the money as he or she wishes), it is nonetheless a simple and effective technique to achieve your ends, especially if the named friend is informed of your wishes at the time you make your will. Don’t surprise your friends with obligations they never agreed to take on. If you fear that your friend might neglect (or worse) your cherished Chocolate Point Himalayan and spend the money refurbishing his kitchen, you need to be on the lookout for new friends.
Fortunately, a new and legally binding means of providing for your pets is now available in many states, including New York: the statutory pet trust. New York Estates, Powers and Trusts Law § 7 – 8.1. Under this statute, it is possible to place money in trust expressly for your pets’ benefit. A reliable friend or family member can be named as trustee. Upon the death of the last surviving pet named in the trust, the remaining funds pass as you provide in the trust or, if you make no such provision, the funds pass to your estate and are disposed of accordingly. If you do not have complete faith in your trustee to carry out the terms of the trust, or simply want an additional safeguard, you may appoint a second individual who has the power to enforce the trust terms.
One interesting aspect of the statutory pet trust is a court’s ability to reduce the principal amount of the trust if the court deems it excessive. Leona Helmsley, the notorious “Queen of Mean” who inherited the New York City real estate empire of her husband, Harry Helmsley, made news even after her death by leaving $12 million in trust for her Maltese, Trouble. The New York Surrogate’s Court eventually reduced that amount to $2 million.