FAQs — Pets and Pet Trusts

I have a beloved pet. How do I ensure she will be taken care of after I'm gone?

Domesticated animals and pets have gained increasing prominence in our lives. Often, they assume as much importance as children – even more in the case of clients without children. Many clients ask how they can ensure that their beloved pets are properly cared for after death. This is far from an unusual or uncommon question. For many people, the care and well-being of the pet is a very important consideration in their estate planning. When considering how to plan for the care of a pet, a pet owner should not only consider what should occur in the event of the owner's death, but also (i) what arrangement should be made during the interim period between the owner's death and the admission of the Will to probate; and (ii) what arrangements should be made in the event that the pet owner should be hospitalized or incapacitated. In other words, a pet owner should arrange for access to his/her home to permit the care and feeding of the pet during such periods.

A Will can make provisions for the care of the pet, but the executor cannot officially take action to carry out these provisions until the Will has been admitted to probate and the Executor has received the authority to proceed by the issuance of letters testamentary. Since there can be a period of weeks, if not months, between death and the issuance of letters testamentary, plans should be made to ensure care for the pet during this interim period.

A pet owner can designate a suitable caretaker for their pet in their Will. This matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. It should be noted that the person who receives an animal as the result of a bequest in a Will becomes the owner and, as such, has all the rights and responsibilities of ownership (including the right to euthanize the animal). It is prudent to name alternate caretakers in the Will in case the first-named person is unable or unwilling to take the animal when the time comes. Alternatively, the Will can provide the executor with the discretion to select an appropriate caretaker.

Since a pet owner cannot leave any part of his or her estate outright to an animal, the owner may leave a sum of money to the person designated to care for the pet. The pet owner should leave a reasonable amount of money for the care of any pet, since a large sum of money could prompt relatives to challenge the Will. If the bequest is conditioned upon the beneficiary's proper care for the pet, the executor will be obligated to ensure that the person receiving the bequest fulfills his or her commitment.

If there is no appropriate individual to take the pet, the pet owner should consider naming a charitable organization (such as a humane society or shelter) to care for or place the pet.

New York law also provides for the creation of a trust for animals (sometimes called a "pet trust"). A pet trust cannot exceed 21 years, even if the life span of a particular animal is longer. The trustee appointed in the trust will be directed to the trust instrument to use the funds in the trust to care for the animals.

It may also be advisable to include a provision in a Will permitting the executor to use estate funds to care for the animal for the period before the animal goes to the new home designated by the pet owner. The Will should state that the costs of food, veterinary care, transportation and other expenses incurred by the Executor in caring for the decedent's pet is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes.

A concerned pet owner might consider keeping a short written note in their wallet or purse containing emergency instructions in the event that the owner is injured or hospitalized and unable to return home to care for their pet.

In short, the best way to assure proper care for a pet is to make both testamentary and short-term arrangements for the pet now and to have a Will drafted by a qualified attorney.