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Pet Trusts

  • 86.4 million cats and 78.2 million dogs owned in the U.S per the American Pet Products Association 
  • 400,000 pets a year need to find new homes because their owners die according to Humane Society                                                         
  • "To ensure your pet receives proper care after you are gone, estate planners recommend setting up a formal trust."  Read whole article at July 2011 WSJ
  • Writing below is from pet trust seminars for lawyers and the public by Richard Mayberry.
Estate Planning                        for Your Pet
 Americans spend over $36 billion per year on their pets including $8 billion at the vet.  American households have more pets than children.  Over 43 million homes have a dog and over 38 million homes have a cat. 

Research shows that there are health and financial benefits to owning a pet.  The National Institute of Health reported that pet owners “reap unexpected health and financial benefits (from lower health care costs) in addition to enjoying the companionship of the family cat or dog.”  Pets can help a person stay healthy because owner may enjoy engaging in physical activity with the animal such as playing ball or going for walks.  Because of their unconditional love and their constant need for attention, pets may help to speed up recovery after major illness, deal with stress, improve mood and sense of well-being, lessen feelings of isolation and loneliness, or provide a sense of purpose.  The website of the National Center for Infectious Diseases reports that “pets can decrease your blood pressure, cholesterol and triglyceride levels, and feelings of loneliness.”

Most pet owners consider their pets as family members.  Because some pets may outlive their owner for an extended period of time, it is important to plan for this situation.  Dogs and cats can live up to 18 years, tarantulas up to 30 years, snakes up to 40 years, and Macaws up to 80 years 

Several wealthy individuals who recently died made significant provisions in their wills or trusts for the benefits of their pets.  The very wealthy Leona Helmsley bequeathed $12 million to her dog, Trouble, in a trust.  Mrs. Helmsley was a billionaire New York City hotel operator and real estate investor.  She had a reputation for tyrannical behavior that earned hear the nickname “Queen of Mean.”  After been convicted and sentenced for tax evasion and fraud, she spent her later years in isolation.   Her fortune was estimated to be over $5 billion.  The money allocated to Trouble’s care was just pocket change compared to the rest of Helmsley’s estate.  But the New York Times story reported that the assets in this trust were nearly ten times as large as all the assets of the existing animal-related nonprofits put together.  The Court accepted the concept of a pet trust but reduced the bequest to $2 million.  The dog’s caretaker submitted an affidavit to justify the $2 million principal, including expenses like a $60,000/year guardian’s fee and $8,000 in grooming fees, as well as the mundane expenses of food and veterinary care. 

In this estate planning, the attorney of Leona Helmsley should have been more careful regarding Trouble’s funeral instructions.  Mrs. Helmsley instructed that Trouble someday shall be interred with her at the Helmsley mausoleum at Sleepy Hollow Cemetery.  Unfortunately, the cemetery says that state law forbids animal remains to be buried in human graveyards.  Animal cemeteries do not forbid human remains to be buried in animal graveyards.  Shall the Helmsley mausoleum be transferred to an animal cemetery?

Mrs. Helmsley is not alone.  Carlotta Liebenstein, an Austrian countess, bequeathed her $80 million estate to her dog, Gunther.  Dorie Duke, the sole heir to Baron Buck Duke who built Duke University and started the American Tobacco Company, bequeathed $100,000 in trust for the benefit of her pet poodle, Minnie. 

However, the need for estate planning for the care of pets is not limited to wealthy individuals, and the increased need for estate planning for pet owners has been reflected by new legislation in the past decade, which recognizes pet trusts and provides provisions to make them enforceable. 

I. Legislative Overview

a. Historical background.

Pets are considered under common law to be tangible personal property, which has two key implications for estate planning.  First, in absence of specific provisions, pets will pass to beneficiaries of the decedent, along with the rest of the decedent’s tangible property.  Second, again in absence of specific provisions or statutes, the pet cannot be the direct beneficiary of any testamentary gift or trust.  In absence of any statutory provisions, pet owners could take certain actions, such as making a bequest of the pet to a caretaker, with a lump sum to cover the living expenses of the pet.  The average amount bequeathed varies from $10,000 to $25,000.  This provision usually works when the caretaker is trustworthy, the lump sum bequeathed is relatively small, and it is highly unlikely that the pet will outlive the caretaker.  However, this kind of testamentary provision has several issues.  It is not legally enforceable, and the caretaker can pocket the money and abandon the pet without fear of legal reprisals.  , With the necessary probate of a will, there may be a significant period of time between the death of the pet owner and availability of any monetary bequest and provisions for the care of the pet.  In addition, if the pet has a long life expectancy, there is no provision for a successor caretaker. 

b.     Trust Statutes Adopted by over 40 States

Because of the growing interest in having a legally enforceable trust for pets, 43 states have passed legislation recognized a form of pet trust in the past decade.  In 1990, the Uniform Probate Code provided model language which created enforceable honorary trusts for pets, subsequently adopted by ten states.[2]   The UPC model language is as follows:

§ 2-907. Honorary Trusts; Trusts for Pets.

(a) [Honorary Trust.] Subject to subsection (c), if (i) a trust is for a specific lawful noncharitable purpose or for lawful noncharitable purposes to be selected by the trustee and (ii) there is no definite or definitely ascertainable beneficiary designated, the trust may be performed by the trustee for [21] years but no longer, whether or not the terms of the trust contemplate a longer duration.

(b) [Trust for Pets.] Subject to this subsection and subsection (c), a trust for the care of a designated domestic or pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument must be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.

(c) [Additional Provisions Applicable to Honorary Trusts and Trusts for Pets.] In addition to the provisions of subsection (a) or (b), a trust covered by either of those subsections is subject to the following provisions:

(1) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to any use other than for the trust's purposes or for the benefit of a covered animal.

(2) Upon termination, the trustee shall transfer the unexpended trust property in the following order:

(i) as directed in the trust instrument;

(ii) if the trust was created in a nonresiduary clause in the transferor's will or in a codicil to the transferor's will, under the residuary clause in the transferor's will; and

(iii) if no taker is produced by the application of subparagraph (i) or (ii), to the transferor's heirs under Section 2-711.

(3) For the purposes of Section 2-707, the residuary clause is treated as creating a future interest under the terms of a trust.

(4) The intended use of the principal or income can be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to it by an individual.

(5) Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the existence of the fiduciary relationship of the trustee.

(6) A court may reduce the amount of the property transferred, if it determines that that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property under subsection (c)(2).

(7) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee, if required to assure that the intended use is carried out and if no successor trustee is designated in the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A court may also make such other orders and determinations as shall be advisable to carry out the intent of the transferor and the purpose of this section.]

In 2000, the Uniform Trust Code provided detailed provisions for creating enforceable trusts for the benefit of pets, which was adopted by 20 additional states.[3]  The most recent adoptees of this model language are the states of Connecticut, Maryland, and Vermont.  The UTC model language is as follows:

            (a) A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

            (b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

            (c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.[4]

Finally, several states have adopted various other statutes which create enforceable pet trusts, with some similar provisions as to the model language.[5]    

The Humane Society recommends that the owner provide signage regarding the pets on entrances to the owner’s dwelling.  The Human Society of the United States offers self-stick door/window signs for emergency workers and emergency contacts stickers for the inside of the dwelling.  These signs inform that pets are in the dwelling and provide contact information.

b.     Powers of Attorney

The Durable Power of Attorney should address the issue of custody of the pets and provide an expenditure provision for the care of the pets.  This immediate estate planning is particularly important for individuals who live alone, who are advanced in age, who suffer from chronic illnesses, who have multiple pets and want them to stay together, whose family members do not want to take care of the pets, or whose pets have a very long life expectancy.  Of course, the pet owner should ensure the named pet caregivers are willing to care for the pet.

 Sample of Durable Power of Attorney Language

My agent shall take possession and custody of Treeline, my Dachshund dog, and Ladycoach, my cat, and any other pets I may have.  If my agent cannot take possession and custody of my pets, my agent shall provide their possession and custody of my neighbor friend, Petlover.  If Petlover is not available or willing to take possession and custody of my pet, then my agent shall seek appropriate care and shelter for my pets.  My agent shall expend and utilize such amounts of my funds or other property as may be necessary or advisable to provide for the health, care, and welfare of my pets, including but not limited to food, veterinary care and/or insurance, toys and other recreational activities, and temporary boarding and/or pet-sitting fees.  For the purposes of this instrument, any action taken by my agent for the benefit of my pets shall be considered taken for my benefit.  In addition, unless medically or physically impracticable, my agent shall ensure that I have as much contact with my pets as I did before becoming incapacitated. 

c.      Living Wills

Pet owners may want to provide instructions similar to a “Living Will.”  Pets can have many painful diseases including arthritis and cancer.  Information on how the owner feels about euthanasia will help the pet caregiver and veterinarian make decisions on how far they should keep a pet alive or when the pet should be relieved from pain.  Also, instruction on how the pet’s remains should be disposed of should be included (e.g., cremation of the pet and burial of the remains in a particular place.)  The cost of a pet burial ranges from $250 to $1,000, and pet cremations are less expensive.  Several internet sites offer to create a memorial for the pet.  See

 Sample language (1):

My agent should follow my wishes known to him or her or that I have written.  If my agent cannot determine the choice I would want for my pets then my agent’s decision shall be based on what my agent believes to be in my pet’s best interest.

 Sample language (2):

I direct that my pet caregiver provide any needed, reasonable veterinary care that my pet(s) may need at the time to restore the pet(s) to generally good health and to alleviate suffering, if possible.  Any pet not in generally good health or who is no suffering – and whose care is beyond the capabilities of veterinary medicine, reasonably employed, to restore to generally good health or to alleviate suffering- shall be euthanized.  [or: If there is no hope of medical improvement and my pet is in constant or almost constant pain; I hereby authorize my agent to end my pet’s life.  However, my agent’s decision should be based on the written opinion of a veterinarian who has examined the pet.]

 Sample for a Do-Not Resuscitate Instruction

I hereby request that in the event my pet’s heart and/or breathing should stop, no person shall attempt to resuscitate my pet.

II.              Planning for Emergency and Incapacity:

Pet owners should be prepared for the care of their animals in the event of either their death or incapacity, and should take care that others are aware of their wishes regarding the care of their pets.  Regardless of the estate planning tools used, it is recommended pet owners carry a wallet “alert card” that lists the names and phone numbers of emergency pet caregivers and to add provisions for the care of pets in a Durable Power of Attorney. [6]  Instructions regarding the end of life of the pet should also be addressed. 

a.     Emergency Cards

The emergency card should have the following information:

-        Photo of the pets and their description and location

-        Name, address and telephone phone number of the emergency pet caregivers

-        The following declaration:

I have the following pet(s)[description and name], located at [address], which require immediate attention and care.  Please contact as soon as possible the following person(s), who have accepted to take care of my pet(s) and inform them of my condition and whereabouts.

[name, address, and phone numbers, and email address] 

Signature:                                 Date:                       

Emergency pet caregivers should be provided with an instruction list on the pet’s diet, feeding instructions, medication, veterinarian contact information, recreational activities, description of particular habit or reaction to certain situations, and an extra set of keys of the domicile.  A simple but clear authorization should be given to the caregiver.

III.            Planning for Long-Term Care:  Pet Trusts:

a.     Absence of Statutory Provisions

As discussed above, the majority of states now provide statutory provisions to create a trust for the care and benefit of pets.  However, in a state without such provisions, pet owners may still include testamentary provisions in their will, bequeathing both the pets and monetary property to a caretaker/beneficiary.  Again, this this arrangement has no legal force.  

Sample provision:

I hereby give my Chihuaha, Charlie, to my friend, Doglover, and the sum of $10,000, which shall be expended for the care of Charlie during its remaining lifetime.  However, if Charlie is not then- living or if Doglover does not undertake the care of Charlie, the pecuniary gift shall lapse. 

Another alternative is to bequest a sum to an organization which is committed to find a home for the pet.  Purdue University’s School of Veterinary Medicine has established a program called “Peace of Mind.”  In return of a minimum bequest of $25,000, the university will find a home for the surviving pet[7].  Note, however, that none of the funds bequested will go to the care of the pet or to the new caretaker of the pet.  Stevenson Companion Animal Life-Care Center located in Texas is a residence for pets.  A pet owner pays for the pet’s care with a minimum endowment between $50,000 to $100,000 which varies depending on the age of the owner, the age of the pet and its size.  Potential issues with organizations such as these, include the projected existence of such facilities over the lifetime of the pet, as well as the pet owner’s lack of control over the standard of care of the pet. 

b.     Traditional Pet Trust

In absence of pet trust statutory language, a pet owner may have an attorney draw up a traditional trust, naming an individual as the beneficiary of the trust, with disbursement of funds contingent upon care of the pets according to two standards.  Drafters have to be careful of not setting an honorary trust statutes and of not violating the rules against perpetuities and address two main challenges: (i) how to establish a valid and enforceable trust solely for the benefit of a pet which is not considered a human beneficiary with no standing to enforce the terms of the trust against the trustee; and (ii) who could step into court on behalf of the pets. To address these challenges, the pet owner may create a trust in favor of a pet’s caregiver –a human beneficiary.   The trustee is required to make distributions to the caregiver to cover the pet’s expenses provided the beneficiary is taking proper care of the pet.  This technique solves two problems:  there is a measuring life conformity with the rule against perpetuities and there is an individual with standing.

c.      Statutory Pet Trust

The establishment of statutory pet trusts has addressed the issues of both the Rule against Perpetuities, and the question of standing.  In most of the pet trust legislation, the pet is recognized as a beneficiary of the trust, third parties have standing to protect the welfare of the pet. And the requirement of 21 years has been eliminated to permit a pet trusts to be used for long-lived animals, with an explicit provision that the Rule against Perpetuities does not apply to pet trusts.  But typically, the pet owner cannot provide for the animal’s offspring unless conceived before the death of the pet owner. 

d.     Honorary Pet Trust

Few states have enacted pet trusts without providing for their enforcement.  The trustee may carry out the pet trust but is not required to do so.  For instance, the State of Wisconsin provides under W. S. A. 701.11 (1), that when “the owner of property makes a testamentary transfer in trust for a specific noncharitable purpose, and there is no definite or definitely ascertainable human beneficiary designated, no enforceable trust is created; but the transferee has power to apply the property to the designated purpose, unless the purpose is capricious. If the transferee refuses or neglects to apply the property to the designated purpose within a reasonable time and the transferor has not manifested an intention to make a beneficial gift to the transferee, a resulting trust arises in favor of the transferor's estate and the court is authorized to order the transferee to retransfer the property.

e.     Creating a trust immediately v. in a Will

While a pet owner could provide for their pets in a will, the better plan is to create a trust either during the life of the owner or upon death.  A good strategy is to create a pet trust while the owner is alive and stipulate that the trust will become effective only when the pet owner is unable to care of the pets or dies. 

f.      Considerations in Establishing a Pet Trust

                                    i.     Estimating the Cost of Care

The pet owner should estimate the cost of care of the pet.  The following expenses should be considered in the estimate:  food, medications, grooming, veterinarian services, pet life insurance, boarding, pet-sitting, toys, recreation, entertainment, and compensation to caretaker.  The cost of care may increase as the pet is aging.  The estimated cost should be multiplied by the life expectancy of the pet.  At this estimated cost, an annual rate of inflation should be added.  It is good to discuss with the veterinarian the average expenses for treatment and medication at the end of a pet’s life of a similar breed.  The estimated expenses may be readjusted for the final years of the pet’s life.  Finally, the cost with respect to the disposition of pet’s remains needs to be estimated.  The method of distribution for the cost of care of the pet should be addressed in the trust document. 

                                       ii.     How to Select the Care Taker and Trustee?

The pet owner needs to identify the pet(s), to select a trustee, a pet caregiver, successor trustee(s) and caregiver(s), a remainder beneficiary, and possibly a trust protector.   The pet owner should ask whether the trustee(s) and pet caregiver(s) will accept such commitment.  The pet owner should also discuss his/her concept of care and provide instructions for medical treatments and end of life care of the pet. 

The trustee will oversee the caretaking and periodically check on the pet and the pet’s premises.  The trustee should be given the power to remove the pet caregiver and to name a successor caregiver if none has been selected or available.  The trustee should not be allowed to name him/herself as pet caregiver. 

The pet owner may want to select a trust protector when the value of the pet trust is significant.  It is also recommended to clearly identify the animals that are trust beneficiaries.  An unscrupulous caretaker could replace a deceased, lost or stolen pet in order to continue to receive benefits.  A professional tattoo or a microchip implanted in the animal is certainly the best.  At least, the owner should describe in the document the animal and lists unique characteristics such blotches of colored fur and scars. 

The remainder beneficiary could be a nonprofit organization dedicated to animals.  This will limit family members to challenging the establishment of the trust or its funding amount.  In addition, the organizations will not challenge -while other remainder beneficiaries may- the liberal use of the trust funds by the trustee or the caregiver in spoiling the pet. 

A standard of care should be set as mentioned above for emergency care and end of life instructions should be addressed.  For instance, Virginia Code Section 55-544.08 (E) allows the Court to determine the value of the trust property which would “exceed the amount required for the intended use.”  It is therefore important to keep and document the calculation of the estimated funds for the trust.  

g.     Tax Challenges

There are several tax matters to be considered at the creation of the trust and during the life of the true

                    i.          Gift tax

If the trust is created during the life of the pet owner, the funding of the trust may trigger gift tax unless it is a revocable trust.  The current life time gift tax exclusion is $1 million per individual.  If the owner makes or has made gifts for which the total exceeds $1 million, gift tax will have to be paid. 

                         ii.          Estate tax

The creation of a pet trust at the death of the owner may be subject to federal and state estate taxes.  In 2009, the federal estate tax exemption is $3.5 million on the net estate of the decedent, including probate assets and non probate assets such as life insurance policies, retirement plans, annuities, etc.  The IRS[8] has ruled that no portion of the amount passing to a valid pet trust for the lifetime benefit of a pet qualifies for the charitable estate tax deduction, even if the remainder beneficiary is a qualifying charity.  Therefore, if the funding of the trust is subsequent, the pet owner should stipulate how the taxes attributable to the pet trust should be paid under the federal and state apportionment rules. 

Few states do not have a state estate tax.  States may have a pick-up tax, an estate tax on the ability or privilege to transfer property, or estate tax on those inheriting property.

  iii.          Income Tax

The pet trust is also subject to income tax.[9]  If the owner creates an inter vivos pet trust, the trust can be set as a grantor trust, meaning that the owner during his/her life will pay tax on income  received by the trust.  When the trust is irrevocable, a fiduciary income tax return is required to be filed if the net taxable trust income exceeds $100. 

For traditional trust, where the caregiver is the beneficiary of the trust, the beneficiary will pay income taxes on gains distributed.  The care expenses are not deductible because they are not income-producing asset and are not related to the normal business of the administration of the trust. 

However, if the caregiver is a different person than the beneficiary, the amounts received by the caregiver are considered payment for services, and will pay tax accordingly.  The trustee will pay taxes on the earned income not distributed. 

For a statutory trust, where the pet is the beneficiary of the trust, the trustee will pay all the tax and there will be no deduction for the distribution made the pet.  There is no deduction because a pet is a non-human beneficiary without a social security number.  However, Revenue Ruling 76-486 allows that when the state has statutory pet trust legislation, the trust is taxed at the rate of a married individual filing separately. 

To summarize, a traditional trust is taxed at the trust rate, distributions are deductible to the trust and the caretaker is report the distribution on his/her individual income tax return.  A statutory trust is taxed at the rate of a married individual filing separately.  The distributions are not deductible to the trust, but the beneficiary does not pay income tax on the distributions received. 

End Notes

[1]   Prepared and presented by Richard Mayberry, Esquire, Trusts, Estate, Elder and Elder Law, 2010 Corporate Ridge, Suite 700, McLean, VA 22102, Tel. (703)714-1554,, . Mr. Mayberry handles a variety of pet estate plans for his clients including pet trusts for dogs, cats, horses, parrots and other animals for his clients in Northern Virginia; Mayberry can be reached at or call 703.714.1554. Mr. Mayberry taught the legal aspects of caring for pets past the owner’s life nationwide to attorneys in a webcast in December 2009.  I note with appreciation the valuable assistance of Yahne Miorini, Esquire, and Ashley R. Dobbs, Esquire (

[2][2] Alaska, Arizona, Colorado, Hawaii, Illinois, Michigan, Montana, North Carolina, South Dakota, Utah.  Prof. Gerry W. Beyer, Texas Tech University School of Law, “Estate Planning for Non-Human Family Members,” Dec. 5, 2009 at  See also, Sec. 2-907, Uniform Probate Code (1993).

[3][3] Alabama, Arkansas, District of Columbia, Florida, Kansas, Maine, Maryland, Missouri, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, and Wyoming.  Id.

[4] Sec. 408, Uniform Trust Code (2003).

[5] California, Connecticut, Delaware, Idaho, Indiana, Iowa, Nevada, New Jersey, New York, Rhode Island, Texas, and Washington.  Wisconsin has also passed legislation which recognized trusts for pets, without providing provisions for legal enforcement.   Id.

[6] Providing for Your Pet’s Future without You, The Humane Society of the United 

[7] Useful Estate Planning Techniques for Pet Owners, by  Arthur H. Kroll, Estate Planning Journal, August 2006.

[8] Revenue Ruling 87-105, 1978-1 CB 295

[9] Revenue Ruling 76-486, 1976-2 CB 192

December 2009; February 2011