Historically, one could always provide for his or her pet(s) in a Last Will and Testament. One’s pet could be left as a bequest to another with the hope that said person would properly provide for the pet, or one’s Last Will and Testament could specifically allocate a portion of his or her estate for the care and maintenance of the pet(s). However, the problem with providing for one’s pet(s) in one’s Last Will is that the Last Will can be contested for a reason unrelated to the pet, and there can also be a significant lapse of time between one’s death and the appointment of the executor of said Last Will. These roadblocks can essentially leave the pet in a state of limbo. Because of these impediments, the wishes of pet owners have in many instances been thwarted by the use of a Last Will to provide for their pets.
In 1996, New York was one of the first states to enact a Pet Trust Statute. Section 7-8.1 of the New York Estates, Powers and Trusts Law (EPTL) permits the creation of a trust for the care and maintenance of a pet(s). The pet trust can be created and funded during the life of the grantor/creator as an "inter vivos trust" or it can be a testamentary trust, created in one’s Last Will. As with any other trust document, a trustee(s) is appointed to oversee the implementation of the trust terms. Originally, EPTL section 7-8.1 provided that the income and principal of the trust was to be used for the benefit of the designated pet(s) until the death of the pet or at the end of a twenty-one (21) year period, whichever occurs earlier. This was done to comply with the well-established "Rule against Perpetuities," where all interests in property must vest, if at all, no later than twenty-one (21) years after the measuring life passes. However, in 2010, the statute was amended to recognize the fact that some animals may have a longer life expectancy than twenty-one (21) years. Thus, the statute now permits the trust to continue for the entire life span of the pet or animal.
At the end of the life of the pet or animal, the trust will terminate and the balance of the income and principal of the trust will be distributed per the wishes of the grantor/creator of the trust. It is important to note that EPTL Section 7-8.1(b) specifically provides: "(b) 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 benefit of all covered animals."
EPTL Section 7-8.1(d) provides a court with the authority to reduce the amount of property transferred to the pet trust if it determines that it substantially exceeds the amount required for the intended use. The amount of the reduction, if any, will pass to beneficiaries named to receive upon the death of the pet or animal. The most well-known pet trust is the one created by Leona Helmsley for her beloved white Maltese, "Trouble." Trouble’s Trust was originally funded with twelve million dollars. The Manhattan Surrogate’s Court reduced the size of the trust to two million dollars, determining that the trust was over funded for the implementation of the decedent’s wishes. (Stephanie Strom, Helmsley Left Dogs Billions in Her Will, http://www.nytimes.com/2008/07/02/us/02gift.html [accessed February 4, 2016]; further discussed in In Re Copland, 44 Misc. 3d 485, 988 N.Y.S.2d 458 (2014), N.Y. Slip Op. 24172.)
In conclusion, if one wishes to ensure that one’s pets or animals are adequately protected upon one’s demise, a pet trust, even though it too may be contested, especially if it is overfunded, may be the best and most viable option of ensuring that one’s wishes are implemented.
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