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    The Lawletter Blog

    ESTATE PLANNING: Pet Trusts

    Posted by D. Bradley Pettit on Thu, Aug 19, 2021 @ 11:08 AM

    D. Bradley Pettit, Senior Attorney, National Legal Research Group

                According to a treatise on revocable trusts,

    [t]he number of individuals who own animals is staggering. As many as 56.7 million households in the United States own dogs and 45.3 million own cats.

    2 George M. Turner et al., Revocable Trusts, 5th § 78:1 (Westlaw current through November 2020 update).

                As to pet trusts, the Uniform Probate Code provides as follows:

    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.

    Unif. Prob. Code § 2-907(b) (Westlaw current through 2019 Annual Meeting of the National Conference of Commissioners on Uniform State Laws).

                The following provisions of the Uniform Trust Code exemplify pet trust statutes that have been adopted in a growing number of states:

    • 408. Trust for Care of Animal.

    (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.

    Unif. Trust Code § 408.

                Courts stand ready to enforce and protect valid pet trusts in the face of attempts by executors or others to either invalidate or reduce the funding thereof. For example, a New York Surrogate’s Court sitting in Westchester County held that an executor’s petition for approval of a reduction in funding of a decedent’s testamentary pet trust was not appropriate because the petition sought to cast aside the decedent’s specific instructions as to care of her cats following her death:

                In actuality, Copland’s prayer casts aside the decedent’s wishes. The decedent gave very specific instructions as to how she wanted her cats to be cared for. That care included Eugenia [pet caregiver], her home, a salary and bonus to Eugenia, maintenance for the home and a stipend for the cats.

     

                Furthermore, after the decedent’s daughter and her husband predeceased her, her instrument makes clear that the primary object of her bounty became her cats (and not the charities). If she had wanted to dispose of her assets to give more money to the charities right away, she could have. Indeed, she gave $115,000 in cash bequests to the charities (including $25,000 to PETA). The face of the instrument makes plain that she knew that choice was available to her. She also could have chosen a less expensive option for the care of her pets. But she did not. Instead, as evidenced by Article FIFTH of her will, she painstakingly planned out the care for her pets and set forth that the charities were to take only on the death of her last cat. Again, if she intended to benefit the charities over her pets, and create a charitable deduction, the instrument would have been drafted differently.

     

                In essence, Copland is asking for this court to rewrite the decedent’s will. The court may not override the expressed intention of a testator (see Matter of Knapp, 1 Misc. 3d 1202[A], 977 N.Y.S.2d 667, 2013 NY Slip. Op. 51556[U] [Sur. Ct., NY County 2013]; Matter of Kastin, NYLJ, 2013 NYLJ LEXIS 4505, Aug. 1, 2013 at 30 [Sur. Ct., NY County 2013]). Similarly, the very purpose of the statute was to provide certainty to a pet owner regarding the care of her animals. Given the existence of the statute and the facts present, the court could not sanction the premature termination of this trust.

    In re Abels, 44 Misc. 3d 485, 489, 988 N.Y.S.2d 458, 461 (Sur. Ct. 2014) (footnotes omitted).

                Since pets usually are regarded as family members, it is not surprising that individuals want to include them in their estate plans and courts are eager to make sure that incapacitated persons’ or decedents’ expressed desires regarding care for their surviving pets are carried out.

    Topics: trusts, estate planning, D. Bradley Pettit, pets

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