Rachel Hirschfeld, Pet Trust Attorney

The Washington Post
August 30, 2007
By DAVID B. CARUSO
The Associated Press

NEW YORK — Leona Helmsley’s decision to leave $12 million to her dog so it could live out its life in luxury proved once and for all that she was not one of the little people.

But legal experts say that, size aside, Helmsley’s gift to her beloved pet _ a Maltese named Trouble _ wasn’t unique.

A growing number of people, not all wealthy, have been setting up trust funds or adjusting their wills to ensure that their pets are well cared for if they die, according to attorneys and animal welfare groups.

States have rushed to make such gifts easier. At the close of the 1990s, only a handful recognized so-called “pet trusts.” Now, 39 states plus Washington, D.C., have enacted laws dealing with such gifts.

The types of bequests vary. Some well-off Americans go as far as to set aside tens of thousands of dollars to allow their pets to continue to live comfortably in their past homes with a professional caretaker, rather than be shipped off to a relative.

Others leave money for future veterinary bills, or just to compensate a new owner for taking on the responsibility of a new dog or cat.

Rachel Hirschfeld, an estate lawyer in New York who specializes in pet trusts, said the idea isn’t so crazy.

“People really think of their pets as their babies,” she said.

Yes, she said, gifts like Helmsley’s are extraordinary. Her clients more commonly leave $5,000 to $10,000, although she had one who set aside $5 million.

Tales about eccentric millionaires leaving chunks of their fortune to a pet go back decades, but the creation of trusts for that purpose became easier in 1990 because of an update of the Uniform Probate Code, a model upon which many states base their laws regarding wills.

Animal welfare groups have also lobbied for a federal bill that would create tax benefits for a pet owner who creates such a trust, then leaves the remaining money to charity when the animal dies.

Sara Amundson, a director of legislative affairs for the Humane Society of the United States, said even a small gift can keep a pet from winding up in dire straits.

“As a nation, we still euthanize 4 to 6 million cats and dogs every year, and a good number of those are pets left without care when their owners die,” she said.

Pet owners of moderate means can ensure some stability for their animals by including a few lines in their will spelling out who gets the family dog, said Kim Bressant-Kibwe, associate counsel of trusts and estates for the American Society for the Prevention of Cruelty to Animals.

“Maybe it’s a situation where a person only has $500 or $1,000 to leave for a pet’s care, and that’s fine,” Bressant-Kibwe said. “What we want people to think about is making arrangements.”

The specifics of Helmsley’s gift to Trouble are spelled out in private trust documents and aren’t publicly known. Her will says only that the dog will be cared for by her brother, and that when it dies, its remains will be buried next to her own in a lavish family mausoleum.

Hirschfeld, who was also a longtime acquaintance of Helmsley’s, said that even given the hotelier’s famous penchant for fine living, the trust’s size is startling.

“Twelve million is outrageous. Come on! Let’s get real!” she said. “If someone had come to me and said, ‘I want to leave 12 million bucks, I’d say, ‘why?’”

One possible reason, she speculated, is that money left over after the dog’s demise might ultimately be destined for animal-welfare charities.

A strongly written trust, she said, could likely protect the dog’s gift from becoming the subject of a court fight.

New York state law allows a court to reduce bequests to pets if a judge finds they are more than needed for the animal’s care, and there is always the possibility that disappointed relatives might be waiting in the wings to argue that the dog got too much.

Helmsley, a hotel and real estate magnate who died Aug. 20 at age 87, decreed that the vast bulk of her multibillion-dollar estate would go to charity, not to her family, although she made individual gifts of $5 million to $10 million to several relatives.

She also expressly stiffed two grandchildren with whom she had feuded, saying in her will that they would get nothing, “for reasons that are known to them.”

By Rachel Hirschfeld, Esq.
www.mypetprotection.com

“The greatness of a nation and its moral progress

can be judged by the way its animals are treated.”

Mahatma Gandhi (1869-1948)

“Who owns the pet?” is the first question in pet protection documents. It is important to establish ownership so that legal court battles can be thwarted during divorce or splitting from domestic partners or roommates. So, it’s a good idea to have an agreement governing proprietorship.

Legally recognized and enforceable instruments can now be created by pet owners —pet trusts and pet protection agreements—so that when their owner is unable to care for them or dies, the pet’s care will be continued.

Today, over 88 million cats and 75 million dogs are living in American homes and being treated as part of the family. It is not uncommon to find owners sharing their beds with their pets as well as taking them on vacations. Americans spent $41 billion in 2007 on their pets and are expected to spend $52 billion yearly by 2010.

The consequences of failing to provide for a pet’s transitioning and continuing care can be a hardship on the pet. Unfortunately, the crucial issue of who will care for their pets when they are no longer able to do so is postponed, forgotten or infrequently addressed. In some instances the pet is considered a dear member of the family and care will continue. However, in most cases there is no one left who is able or willing to care for the pet. Too often, the pet will end up with neither a home nor a family. Actually, nearly 9,600 per day pets end up in shelters where in 2007 almost four million dogs and cats were euthanized. Regardless, the owner probably will feel more secure with a legal document than with a promise or handshake for a pet’s continued care. Additionally, the switch and the transition is smoother for all involved with an official record of the owner’s intent. Pet Protection Documents

1. Pet Trust

The pet trust allows for specific pet care instructions and directs the management and disbursement of funds left in the trust for the entirety of the pet’s life. Thus, the pet owner is able to control how much and how often to schedule expenditure of resources.

An excellent reason to establish a pet trust is that pet trusts can maintain that the pet and owner be kept together, regardless of whether the owner requires in-home, assisted living facility, or nursing home care.

Additional advantages of establishing a pet trust is that trust funds are not subject to probate. One can avoid delay by court inaction or hold-ups by court contests, which interfere with the pet’s much needed immediate care. Furthermore, pet trusts are not public documents since they are not subject to probate.

2. Pet Protection Agreement[1]

Named after its creator, Rachel Hirschfeld, Esq., the legally enforceable Hirschfeld Pet Protection Agreement is a combination of written contract and trust, between at least two individuals or entities: the pet guardian or pet guardian organization and, of course, the pet owner. Pet protection agreements operate not only after the pet owner’s death, but most importantly, during the pet owner’s life, including any period of disability. The pet protection agreement can be completed at a fraction of the cost of a pet trust online at mypetprotection.com, with or without the help of an attorney.

The pet protection agreement provides unlimited space for instructions regarding the pet’s care with an easy click menu, identifies the pet owner, designates service providers and back-up pet guardians. It urges the pet owner to name a retirement home, shelter or sanctuary to care for the pet in the event that neither the pet guardian nor successor pet guardian are able to fulfill that role.

3. Wills, Health Care Proxies and Powers of Attorney

The value of pet protection documents can be enhanced by including enforceable provisions concerning the care of animal companions in wills, health care proxies and powers of attorney. Remember, wills operate only after the pet owner’s death, while health care proxies and powers of attorney operate only before a pet owner’s death. By contrast, pet trusts and pet protection agreements operate both during the pet owner’s life and after the pet owner’s death.

Top 10 Tips

1. Pet Ownership

All counselors and consultants should ask their clients whether they have any pets and who owns the pet.

2. Throughout Life

First of all, the word “incapacity” should never be used when filling in pet protection documents to describe the owner’s possible mental state because it may trigger, or be used as evidence in, a court proceeding. Specifically, the pet owner may become unable to care for one or more aspects of the pet’s life, yet not be legally incapacitated. For example, an arthritic owner may want the pet guardian to begin acting, in a limited role, simply because he can no longer adequately walk the dog. Another owner may want the pet guardian to act because she has difficulty remembering whether or not she fed her cat. Neither of these examples should generate a court appointed guardian.

3. Details

It’s imperative that the pet owner distinguishes the pet. Color, size, shape, breed or mix, markings, any other salient physical characteristics, habits and personality are some important features. Detailed instructions, based on the pet’s routine and preferences, and information about all aspects of the pet’s care, such as food brands and specific flavors; amounts and feeding times; housing; grooming; medical care; toys; boarding; walks; exercise; and socialization should all be included in a pet document. Owners chould provide contact information for groomers, walkers and other service providers and determine who should receive veterinarian reports. It is recommended that pets who have bonded with each other be kept together. Finally, instructions concerning the pet’s eventual cremation or burial, and memorial might be considered.4. Funds

Determine how much it costs the owner to maintain the pet. The amount placed in trust can be large or small. Consider including the following: type of pet; age; health; lifespan (especially significant for some birds or reptiles with long lifetimes); lifestyle (including food, grooming, boarding, kennel fees, sitters, walkers, toys and travel); number of pets; inflation; and possible reimbursement for extraordinary expenses.

Because disgruntled heirs may challenge a trust or will which leaves a sizeable amount for the pet’s benefit and because some states permit the court to reduce how much is left in a pet trust if that sum substantially exceeds the amount required for the pet’s use, it is important to take time to explain why the amount left for the pet’s care is reasonable. Examples of past expenses are always helpful to explain to the court, if necessary, why that amount was left.

5. Trustees

Since the trustee’s role is to distribute funds to the pet guardian for use for the care of the pet, it is important that the trustee be an animal lover who agrees with the owner’s spending habits. Ultimately, the trustee, in his fiduciary capacity, has a legal obligation to carry out the terms of the trust.

Trustee powers could include the right to: choose a guardian for the pet in the event that all designated pet guardians are unavailable; purchase a residence for the pet and its guardian; and remove the pet guardian and replace him with the successor guardian, without the necessity of court intervention.

Sadly, some states permit the trust to exist only up to 21 years and pets could outlive their trusts. Thus, the guardian and trustee should be permitted to create additional pet protection documents consistent with the owner’s intent, in order to continue to protect the pets.

6. Pet Guardian

The guardian has a dual role. Initially, he may be called in to partially care for the pet during an owner’s inability to do so. Ultimately, the full time care of the pet may be his responsibility. It would be best for the owner to choose an individual who knows and likes the pet. Conversely, the guardian should be someone who the pet likes. It is important to allow the pet guardian to exercise discretion when faced with new circumstances, as long as that discretion is exercised in the pet’s best interests. In case prior pet guardians are unwilling or unable to act, it is wise to name as many alternate pet guardians as possible,7. Pet Retirement The owner should name a retirement home and a back-up to care for the pet regardless of how many pet guardians are named. The organization should act in either a temporary or permanent pet guardian in the event all previously named role are unavailable. Alternatively, the retirement home can assist in finding a new family for the pet.8. Incentive

Compliance with the pet owner’s wishes is the goal of pet protection documents. To encourage facilities to keep the owner and pet together during the owner’s disability and/or until the owner’s death, pet owners should consider naming as pro rata beneficiaries of the trust remainder facility that helped make their hopes and wishes come true.

9. PlansThe pet owner should be allowed to trigger the enforcement of the pet trust or pet protection agreement at any time.10. Signatures

All pet documents should be signed by the owner, the guardians and, if there are trustees, by them as well. This will confirm awareness by all responsible named parties.

We are Family- No Matter What HappensPet owners are the majority population in the United StatesS. According to recent statistics, an astounding 65% of all American households have at least one pet and in many of these homes, their pets are considered part of the family. Pet trusts and pet protection agreements are ideal tools to use to help owners and their pets remain together, to ensure that pets are well-cared for, and to establish procedures for legally transitioning pet ownership.

Rachel Hirschfeld is a nationally recognized expert on pet protection documents whose mission is to ensure that every companion animal has a secure future and that no pet who has found a loving home will ever be abandoned again. You can contact her through her websites, www.mypetprotection.com and www.pettrustlawyer.com

toll free at 1-877-7PET TRUST (1-877-773-8878)

[1] TM & © 2007 Pet Protection Agreement, LLC. All rights reserved. Patent pending.