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Providing for Pets in Your Estate Planning

By James Lanham

February 3, 2016

James J. Lanham,

Ohio State Bar Association Certified Specialist in

Estate Planning, Trust and Probate Law

 

            Most people plan estates around their surviving descendants, but do you also have pets you fancy who might survive you?  Upon her death, hotel tycoon Leona Helmsley provided only $12 million for her beloved Maltese named Trouble.  The four legged heir was doomed to eat hand-fed crab cakes, cream cheese and steamed vegetables with chicken.  Trouble’s annual care budget ran around $190,000, a large portion of which was for her security team retained due to kidnap threats.

            Pharaohs in ancient Egypt preferred to take their pets with them when they checked into their pyramid tombs.  Cats in particular were mummified with cedar oil and spices and joined their human keepers in the tomb.

            Perhaps $12 million or a pyramid would be extravagant for your cat or dog, but you still might consider providing for their care should your pets outlive you.  Pets in Ohio are treated as tangible personal property.  Your heirs who inherit your household goods, car and lawn mower also get Fido unless you leave Fido to a specific person.  The language used in your will or trust to designate a care giver should be carefully drafted.  One of my first probate cases involved a clause in a will which stated that the decedent’s nephew would receive $5000 “if he takes care of my cat.”  The decedent’s nephew contacted our office to report that he had “taken care of the cat” having euthanized it at a local veterinarian’s office.  We filed a declaratory judgment action with the court to determine whether the nephew’s concept of taking care of the decedent’s beloved cat was consistent with the decedent’s intent in the will.  The judge ruled that the nephew could not claim his windfall for murdering a purrrfectly healthy cat.

            The Ohio trust code specifically allows humans to create trusts for pets if the pets were alive “during the settlor’s [trust maker’s] lifetime.”  Ohio Revised Code Section 5804.08 states that the trust must terminate at the death of the pet or last death of multiple pets covered by the trust.  The courts are given discretion in the statute to reduce the pet’s trust fund if the “trust property exceeds the amount required for the intended use.”  The Helmsley Trust was similarly reduced from $12 million to $2 million when a judge determined that the funds exceeded what was necessary to care for the mighty beast.

            A pet trust may designate a paid caretaker or may simply provide funds to whomever agrees to care for the pet.  The trust can be designed to be distributed in a trustee’s discretion, or it could list specific permitted expenditures such as providing health care, grooming, toys, high-end food, kenneling for vacations or respite care for its caregiver, treats, and perhaps braces for its teeth.  Our miniature Schnauzer was recommended to get braces at the Ohio State Veterinary clinic to correct an overbite.  Poor Toby still has that overbite years later waiting to inherit enough cash for corrective dentistry. 

            Pet trusts cannot be enforced by their four-legged beneficiaries, so the Ohio Trust Code allows the caregiver of the pet or an interested person designated by the court to enforce the trust for the pet’s benefit.  Once the trust is terminated, leftover funds pass to the trust maker’s successors unless the trust makes other provisions.  Some of my clients have left any excess pet fund funds to the Humane Society.    Helmsley’s leftover funds in Trouble’s trust passed to her $3 Billion charitable trust.  Like the pharaohs, Ms. Helmsley requested that Trouble be buried with her, but the cemetery policy prohibited that practice so it is unknown whether Trouble ever made it Leona’s mausoleum.

            A more simple solution for pet care is to bequeath the pet to a relative or friend who truly likes the animal and give that caregiver a lump sum calculated to cover the pet’s needs for its expected lifetime.  Given the variety of burial options for pets, providing directions and funds for its final resting place might also be considered.  Keep in mind that the recipient of the pet should have full discretion and flexibility in any pet related decisions.

            The bottom line for pet estate planning is that four legged friends may be some of your most important possessions while you live, so consider providing for their keep when you are no longer able to care for Fluffy or Fido.

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