Pets, often overlooked in wills, are getting more attention

June 29, 2009

While most people consider their spouse, children, family members and funeral costs in estate planning, many overlook their babies who happen to have four legs, a tail, feathers or even scales.

Pets are left out of the conversation or, once the owner dies, are an afterthought like a great aunt's antique lamp no one thought to document in the will.

For attorney and Indiana University-Bloomington English professor Alyce Miller, a pet trust is one way to go.

"I believe all pet owners should have a pet trust or, if their state does not allow it, a paragraph in their will that essentially copies the intentions of a trust," Miller said. "We don't like to think about preceding our pets in death, but it happens all the time.

"Many beloved pets end up in shelters or worse because no one can take them."

Valparaiso University School of Law professor Rebecca Huss said discussion about who would be an appropriate caretaker for a client's animals might be beneficial even if the client doesn't set up a trust.

Many pet trust statutes started coming before legislatures in the last decade, said Huss, who teaches about animal law and has a pet trust herself. People tried to protect companion animals long before the concept of a "pet trust," but directives and honorary trusts are now enforceable, Huss said.

Indiana, 39 other states and Washington, D.C., define pet trusts and make them enforceable.

Indiana code states that pet trusts can be enforced for pets that were "alive during the settlor's lifetime" until the death of the last surviving animal included in the trust.

While other states may limit the length of the trust to 21 years, Meek said some animals, such as parrots and turtles, can live 60 years. He said life expectancy should be considered when choosing a caregiver and backup caregivers.

Before Indiana enacted its statute in 2005, someone could include a pet and its care in a will by stating what assets would go to a caretaker to care for the pet.

State statutes, including Indiana's, limit how much can be included in pet trusts.

While it's unlikely someone would leave $12 million to a dog like Leona Helmsley left to her dog, Trouble, in New York in 2007, the court could have some input for "excessive" trusts. The court lowered Trouble's trust fund to $2 million.

When considering how much to include, Huss recommends owners consider food, regular medications or health issues, vet visits for preventive care, and other costs.

"Since it is likely that the settlor has a great deal of trust in the named caretaker, it may be more efficient to provide a separate set of instructions on the likes/dislikes of the animals that can be updated periodically," Huss said.

While these might be simple matters for dogs and cats, more detail may be needed for large animals like horses that need boarding and regular exercise, or lizards that require specific habitats.

While pet trusts have come a long way, Miller, the IU professor, said other options are still available.

Before Indiana recognized pet trusts, Miller enrolled two cats in Purdue University's Peace of Mind program and stipulated that her dog go to a cousin; the decisions are in her will.

The Peace of Mind Program involves a donation to the Purdue University School of Veterinary Medicine to ensure a pet continues receiving veterinary care and a new caretaker if the pet outlives its owner.

The popularity of pet trusts—and the practice of animal law—is likely to grow.

From 12 percent to 27 percent of people with pets are thought to have included them in wills, Huss said in an article she wrote for an upcoming issue of Valparaiso Law Review.

"With more attorneys involved in these issues, courts and legislatures will likely play a significant role in any future change in the status of companion animals in our society," she said in the article.

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