Including Fluffy or Fido in the Will: The Benefits of Pet Trusts

In 2007, a Gallup poll reported that 59 percent of people in the U.S. own a cat or dog. More importantly, many pet owners do not view their pets merely as animals; instead they see their pets as family members. People want to ensure that their other family members are taken care of after they die. Many pet owners want the same for their pets, and are using their estate plans to make this happen. Those looking to provide for the care of a pet after their deaths should consider establishing a pet trust.
Naming Pets in a Will
As much as people view their pets as family, in the eyes of the law animals are still property. As such, trying to bequeath anything to a pet in a will is destined to fail, since property cannot own property. However, since pets are property, a testator can mention in his or her will who the testator would like to care for his or her pet.
Establishing Pet Trusts
Forty-four states and the District of Columbia have laws governing pet trusts. Such trusts allow a person to set aside money for the care of his or her pets, along with detailed instructions on how to spend the money. The trustee of the pet trust has a duty to follow those instructions.
The rules for how the trusts operate vary by state. For example, in Arizona a person can only create a trust for an animal that was alive when the one setting up the trust was alive – that means that a person cannot provide on-going care for any offspring that a pet might have after he or she dies. Also, under Arizona pet trust laws, the trust terminates upon the death of the last animal for which the testator created the trust to support.
People looking to set up pet trusts need to choose the caregivers for their animal and the trustees for the trust carefully. Pet owners need to be sure that the people whom they select for these roles are willing to accept the responsibility. It is also a good idea to name an alternate in each role, should the first named person not be able to carry out the duties.
Since the law in this area is unstable, it is important for people to consult with an experienced MH estate planning attorney to ensure that they carefully draft the pet trust documents so that the trust will survive any challenges that might arise.
Source: Animal Legal & Historical Center, Brief Overview of Pet Trust Laws, Rebecca F. Wisch