Estate Planning for Pet Lovers

Attorney Christine S. Anderson

August 2017

Pets enrich our lives. For many, they are members of the family. Unlike children, pets never grow up and become self-sufficient. They are always dependent on us for food and shelter. It is natural for a person who considers his or her pets to be members of the family to be concerned about the care of the pets after his or her death.

The New Hampshire Trust Code authorizes a person to create a trust for the care of one or more animals. The trust can provide for animals living during the trust creator’s lifetime, but the pet trust must terminate upon the death of the last pet that was living at the time of the trust creator’s death.

You don’t have to be as wealthy as Leona Helmsly to create a trust for your pet. Nevertheless, it is important that the trust not be funded with more than is necessary to provide for the care of the designated animal beneficiaries. The statute that authorizes pet trusts also authorizes a court to order the distribution of assets in excess of the amount that the court determines to be necessary for the care of the animals. Under a similar law in New York, the Court ordered the trust created for Leona Helmsly’s dog to be reduced to $2 million. Any excess amount ordered to be distributed out of a pet trust in New Hampshire would be distributed to the trust creator or to the residuary beneficiaries of the trust.

If you are considering establishing a pet trust, consider who would be the trustee. Having someone other than the caretaker serve as the trustee provides a check and balance. The trust may provide that the assets can be used to purchase food for the pets, the cost of a caretaker, and veterinarian bills. In order to avoid potential conflicts of interest, it may be best to provide that any assets remaining in the trust at the time of the last surviving pet’s death will pass to a charity, rather than to the caretaker. If you want the caretaker to be the beneficiary after the pet’s death, you may want to have someone other than the caretaker be the person authorized to make the decision to euthanize a pet, at the end of the pet’s healthy lifetime.

Horse lovers abound in New Hampshire. Pet trusts are particularly well suited to individuals who own horses, which are long lived and expensive to maintain.

A simpler alternative for a pet lover is to provide a conditional bequest in a will or trust. For example, “I give $10,000 to my sister, Jane, provided that my sister is willing to provide a home for my pets that are living at the time of my death.” The disadvantage to this type of gift is that Jane may take the pets in, collect the bequest, and then euthanize the animals or take them to a shelter. A similar alternative is for a person to leave a conditional bequest to an animal protection organization, provided that the organization makes certain that his or her pets are adopted into homes.

Supporting animal protection organizations such as the humane society or animal rescue league is also a goal of many pet lovers. Gifts of income tax deferred retirement accounts are especially good choices. When an IRS approved income tax exempt charitable organization receives an income tax deferred retirement account, it will not pay income tax on the funds. This is in contrast to an individual who would pay income tax if the individual received the same funds. Outright gifts of cash or property are also a means to support animal protection organizations, as is naming such an organization as the beneficiary of a life insurance policy.

Using a charitable remainder trust, it is possible to provide an income stream to an individual for life and to have the funds remaining distributed to the animal protection organization. A charitable remainder trust provides estate tax and income tax deductions for the value of the remainder interest passing to the charity, but only if the beneficiary to receive income for life is human. A charitable deduction is not authorized if the income beneficiary of the charitable remainder trust is a pet.

If you are a responsible pet lover, there are many alternatives to ensure that your pets are cared for after your death. Various ways to benefit your favorite animal protection organization are available as well. Alyssa or I would be happy to meet with you to determine the options which are best suited to your circumstances.