Have you ever considered the fate of your client’s pet upon their death or disability? In addition, how this care will be funded? Have you asked your clients if they have considered this when they are sitting across from you discussing their estate plan? When they are planning for their children, grandchildren, bequests to charities, etc.—did they consider their pets? Moreover, did you even discuss this with your client?

Throughout this article, the term pet parent or pet guardian is used in place of pet owner.

We all know how much pets mean to us; we see it on television, we read about it in the paper, we see that pet products have become a multibillion-dollar industry. In 2019, people in the United States spent $96 billion on pet products.[i] Have you considered the most important piece of property (yes, sadly, animals are considered property in New York state, as most states) in your client’s estate? Do you even have the question on your Estate Planning Questionnaire: “Do you have a pet?” Five words and you could be saving a life and providing peace of mind for your client, which as we all know, is invaluable.

What Happens to the Pets in Need?

People mistakenly have the notion that upon their death, or disability, a family member or friend will be moved, and will step in and take their pet and ensure the pet is safe. They think family and friends will naturally provide a home, appropriate care, and love for their best friend(s) when they cannot. The reality is—this rarely happens. Family members are often stretched thin with their own families, work schedules, and busy lives. Often, they do not even live local to the person/pet in need. Some just do not care; sadly, friends and family members will often open the door and let the cat or dog out and shut the door behind them. They send the beloved best friend who is still grieving the loss of their human companion out to fend for themselves  in our world; a pet in the streets is not safe, by any means. They may be brought to a local municipal shelter, which is a kill shelter. There are not many no–kill shelters in existence. 

Family members/friends who care enough about the animal to try to find a rescue group to help, soon will find that many rescue groups have no room, no foster homes, and no money. Unfortunately, some will try to give away the animal or rehome the animal on their own, which is so dangerous for the animal. There are many people who will prey on people in such a situation. The pet may be posted on social media “free to a good home” with the story of why the animal is now homeless. Sadly, there are people who look for these posts and offer to take the pet, but their intentions are usually not to provide a safe and loving home. There are countless situations where the pet is not wanted and is posted on social media; and there are people who know to look for animals on social media sites as they know people are desperate and naïve regarding animal rehoming. Sadly, there is a market for animals for dog fighting, laboratory experiments or satanic rituals, or there are people who are hoarders who collect animals. There may be a good-hearted person who may take in an animal as a friend of a friend or on social media, but it is dangerous for many reasons for the animal to find a home in this manner.  Even just giving the pet to a friend of a friend or a colleague is not safe, unless you truly know this person/family.

Sadly,  senior citizens often pass away with no family or friends to take in their beloved best friend when the senior becomes disabled or incapacitated, or dies. Senior citizens frequently have a senior pet; often, the pet may be a bit neglected because their guardian, due to their age or personal matters, could not provide the necessary attention (e.g., vet visits, grooming, proper nutrition). These are the first pets to be overlooked and killed in our shelters. Of course, that is even if the shelter could admit the pet, because since COVID, the number of animals in need has exploded. There are waiting lists at shelters to surrender a pet because they are overcrowded and literally have no cage space. Many of our shelters have shut down admissions, with no room to house any additional animals.

The result of animal overpopulation is extremely high euthanasia rates for perfectly healthy, adoptable, once-loved cherished family pets at our shelters and also at the veterinarian’s office.

The fact is—there are too many animals in need of homes.

Animal Care Centers (ACC) of New York City are experiencing a spike in euthanizing due to the overcrowding of shelters and a lack of adopters. The shelter system is 65% over its humane capacity for dogs and 15% over its humane capacity for cats, according to an ACC board presentation last June.  This coincides with a 77% and 30% increase in the dog and cat populations, respectively, compared to the same time last year.

Monthly data reports released by the organization indicate the overall placement rate has steadily declined since January and that shelter euthanasia has increased from 76 animals in January to 114 animals in May.[ii] Shelter and rescue populations in the United States have surged  by 900,000 overall since January 2021; more than 359,000 dogs were euthanized in 2023, marking a five-year peak, according to animal advocacy group Shelter Animals Count. Meanwhile, 330,000 cats were euthanized last year.[iii]

People are under the mistaken impression that animals in shelters have behavioral issues; this is simply not true. Perfectly adoptable animals are killed every day. When your client who has a pet, becomes disabled or dies, without proper planning, their pet may be homeless and be subject to the fate of a system without a safety net. The only safety net they have is their guardian, their “mom or dad,” planning for their future care because one day, they may not be able to provide the care for their best friend.

How Can You Help?

First, please include the question regarding pets in your questionnaire. It is understood that it may be challenging for your client to consider planning for the care of their pets, when they no longer are capable to provide this care themselves, but it is an essential question for your client, and it is life saving for their pet.

There are two ways to help your client care for their pet: 1) during their lifetime, for example, if your client becomes disabled or incapacitated, and 2) upon their death.

Planning for the Animals

Short-term planning. We need to prepare for the unexpected during a lifetime. There is short-term planning as well as long-term planning to consider. For a short-term plan, we need to consider care for the pet if there is a sudden hospitalization and there is no one at home to provide care for the pet; one must determine who will step in and how this care be funded. More importantly, communication to those selected when the person has been hospitalized or incapacitated is essential. Consider the person who is out of the home because of a medical event or an accident and is hospitalized for a period of time with no one to care for the animal. Even if the person can communicate to emergency/medical personnel that there is a pet in the home unattended, this does not provide care for the pet; they may not even to be able to find someone to provide a welfare check on the pet. There are many people, especially our senior citizens, who have no family, friends, neighbors who check on them. 

Conversations should be had with family, friends, neighbors, the veterinarian, clergy, and a local well-acquainted and researched rescue group. Someone needs to be chosen and must agree to be emergency contact. More than one contact must be chosen, and the same conversation had with each. Alternative contacts are necessary in case the first or second contact is not available at the time in need. These emergency contacts should be aware of the situation regarding the necessary care of the pet. More importantly, the contacts listed need to be in agreement and willing to step up in case of emergency. If there is an emergency while outside the home—a car accident, a trip and fall, whatever requires a trip to the hospital—there needs to be a plan in place; people to call; and planned entry into your home to care for the pet or to take the pet to someone who will be providing care during your client’s absence.

Notification. A list of people with contact information should be made and carried with the person, in one’s wallet or on one’s person. This list also must be posted in the home. It is useless to have a plan in place but with no one aware of it the day it is needed.

There should be a card in the wallet or on one’s person in case person cannot communicate, “I have pets at home, please call “NAME” at “NUMBER.” If the pet travels with the person, there should be a tag for the crate or for the collar providing similar information.

Notices should also be posted in the home; if a medical emergency happens at the home, emergency personnel need to know who to call for the pet; otherwise, the animal will be taken to a local shelter. 

The “Please Call for Care of my Pets” notice with this contact information, should be posted somewhere that will be visible. One suggested place is on the freezer door.  Emergency personnel are familiar with the vial of life, where people keep their necessary medical information/records in a container in the freezer, and there is a vial of life sticker on the freezer door. The animal contact list, as well as any other necessary short-term planning estate planning documents, can be included within the vial of life container. Please see www.vialoflife.com for details. 

If there is an emergency, and there is no plan in place, the pet will be brought to local municipal shelter where often this pet is lost in the shelter system, or adopted out or, worse, euthanized.  Depending on the medical event, how long in the hospital, and if the person is coherent and able to communicate, there is no way of knowing how, if and when this pet will be reclaimed. All too frequently when there is no plan in place, the animal is taken out of the home and never reunited with their guardian.

Funding for care. Consideration should also be given to the possible financial needs for the pet if the hospitalization or disability is longer than a few days. The individual may move into a rehabilitation facility or a long-term care facility, nursing home, etc. A separate bank account can be opened and funded with a minimal amount of money, depending on how many animals and their needs. There should then be a separate power of attorney over this single account. This way, access is not being provided to all funds; rather, just an amount to provide funding as needed during this period of possible disability. The amount will depend on the type of pet, how many, age, current medical conditions, etc.

Long-term Planning

Long-term planning considerations—your client’s incapacity, disability or death—must be addressed. Planning for the long-term care of a client’s companion animals can be as simple as a bequest of the family dog to a friend or relative and some cash for the dog’s care, or as complex as putting the house into a trust and authorizing the trustee to hire caretakers to live on the property, so the client’s pet and other animals—feral cats, for example—can live in familiar surroundings. This is also ideal if multiple pets are involved.

Trusts. The best long-term planning during one’s lifetime is the creation of a trust for the care of the animal. Trusts play a very important role in the care of pets when their human guardian no longer is able to provide this care, due to death or disability. There is built-in protection with the care of the pets being under the watchful eye of designated providers and the court.

It was realized long ago that pet guardians wanted to provide for their pets, but their intentions were not always carried out and the legal provisions to enforce their wishes were lacking. To better protect the animals and the testators’ wishes, over the years the statutory provisions for pet trusts have been codified.

Section 2-907, which addresses pet trusts, was added to the Uniform Probate Code in 1990 (amended in 1993); the Uniform Trust Code of 2000 has similar provisions found in § 408. Some states have adapted the language from the Uniform Codes, and some have created their own pet trust statutes. Currently all 50 states plus D.C. have statutory provisions permitting trusts for companion pets (www.aspca.org/pet-care/pet-planning/pet-trust-laws).

The New York Statute (1996-Amended 2010) can be found in New York Estates and Powers Trust Law Section 7-8.1.

Summary of law. A trust may be created for the care of a designated domestic or pet animal. The trust terminates when the animal beneficiary or beneficiaries of such trust are no longer alive.

Either an inter vivos trust, which will be utilized during lifetime in case of a disability, or a testamentary trust that will be in effect upon death can be created.  

When creating an inter vivos trust, it should be funded immediately. This trust will also serve as the vehicle that can now care for the person’s pet if disabled or incapacitated; there is no waiting period. All appropriate people are in place and are ready to act when necessary. It is serves as a great resource during the lifetime if such care is needed for the pet. The trust is also ready immediately upon the death of the guardian; it avoids delay between death and the property being available for the pet’s care. (Please see Transitional Period below.)

A well-drafted pet trust typically includes three key people:

• The trustee;
• The companion animal caregiver; and
• A trust protector or enforcer.
  

The trustee in the pet trust is the person who holds legal title of the assets that provide for the care of the animal. Their role will be to fund the care for the animals. The animal caregiver is the person who cares for the animal and possibly the daily care and love for the duration of their life when this time comes. The trust protector/enforcer is to ensure that the intent of the testator is carried out with regard to the care of the pet. The court enforcer should be a different person who would go to court to enforce the trust if the trustee was not fulfilling his or her fiduciary duties.

To create a pet trust, the “settlor” gives the pet trust  enough money or other property to the trustee, who is under a duty to make arrangements for the proper care of the pet according to the settlor’s instructions. These instructions are written in the trust document itself or can be provided in a letter of intention which is referred to within the Trust document. 

Who will Care for Pets?

Animals go to rescue group or sanctuary. When considering where the animals will go upon the death or incapacity of the guardian, some may consider selecting animal rescue groups to rehome their pet or an animal sanctuary where their pet can live for the remainder of their lives. There may also be a panel of people designated in the trust to determine how the animals will be cared for or “distributed.” If the person wants to have their pet rehomed, a reputable local rescue organization needs to be thoroughly researched. The person may want their pet, especially if a senior pet or a pet with special needs, to go to a sanctuary to live out their life. A sizeable donation is usually requested upon receipt of the pet—especially within a sanctuary setting as the intent is to live at the sanctuary and not to be rehomed. What seems good and reputable at the time the estate planning documents are drafted may not be good and reputable at the time it is needed to take in the animals. Therefore, not only should the potential recipients of the animals be researched at the time of drafting—it is imperative that the recipients are researched and visited at the time the animals are to be placed. This holds true for any rescue group named in the planning. They need to be researched before any animals placed with them or before utilizing their services. The trustee or the animal caregiver needs to ensure the placement(s) will be safe for the animals.

If a client provides their animals are to be given to a sanctuary, there should be instructions for the animal caregiver or trustee to perform quarterly wellness checks at the designated sanctuary for the life of the animal and, if going to a rescue group for rehoming, to allow as much checks as permitted for the placement of the animal. The trust document can provide for compensation or reimbursement to the caregiver, trustee, or whoever is performing these checks to ensure the animals are doing well in their new “home.” The trust may also provide funds to care for the pet, wherever placed. There are various ways to assure the pet is cared for if placed in either of these settings.

Animal caregiver to provide lifetime care for pets. Many people do not want their animals rehomed upon their death or disability. The unknown of where they will be and who will be responsible for their lives is an unsettling thought. The thought of an animal sanctuary is not always ideal either. Sanctuaries are good in theory, but many fail due to lack of funds, lack of volunteers or paid staff to care for pets and no succession plan for the sanctuary to survive. The animals who are “owned” by that sanctuary may  suffer; therefore, if someone does not want their animals to be rehomed via a rescue group or be placed in a sanctuary, the person can select the animal caregiver to provide care for their animals for life.

The logistics of this care also must be considered. If there are one- or two-family pets, maybe they can be moved into the caregiver’s home; or if more than a few, consideration should be given for funds to help with construction of a new area within the caregivers’ home to accept the new pet(s). Some may designate funds to purchase a new home for the caregiver and the new pet; others may put their home into the pet trust with instructions for the caregiver to move into the home to take care of the pet(s). For clients with many pets or farm animals, putting the residence into the trust solves the difficult problem of finding homes for all of the animals. This plan only works for clients with adequate assets, as enough liquid assets must be in the trust to maintain the residence and to pay a caretaker, as well as the costs of animal care, such as food, grooming and veterinarian care (see “Funding for the pet trust” below). There is the argument that putting the residence in the trust is the only way to properly provide the care for the animal(s), so they remain together and in a familiar environment. The pet trust can provide the logistical care of these animals. 

There should be, as the last caretaker named, a reputable and researched rescue group or sanctuary in case the named caretaker and successors cannot or are not willing to care for the animal. This will prevent the animal from going into a shelter. Again, this group should be researched at the time of need. The trust should have a provision built in, which provides if the named rescue group or sanctuary is not found to be reputable at the time in need,  the trustee and caregiver can select an alternative—but only if all else fails.

Remember, these plans must be discussed with the animal caregiver, the trustee, and the attorney involved with the drafting. Notes should be maintained by the attorney regarding these considerations and the wishes of the client. The funding of the trust should be appropriate to provide the care of the pet for life.

Funding for the pet trust. The amount to leave in the trust fund is important. Factors such as which type of animal (horse, dog, cat, bird, farm animals as well as the size of each animal) will play into how much food and appropriate housing is required; the age of the animal, as older animals tend to require increased medical care but have less life remaining; the current health of the animal; and the number of animals, must be considered. It is important not to overfund a pet trust because there have been court cases when family members have challenged the validity of the pet trust because they want the funds. This happens all too frequently; the most notable was the Leona Helmsley case with her dog—Trouble! Also, keep in mind the annual administrative expenses of the trust. Consideration should be given to life insurance policies with the pet trust as the beneficiary; this may provide a bit of financial security for the pet if finances are a concern.

Provisions in the trust. Drafting a pet trust can be very detailed. Various considerations to the following should be addressed in either the trust itself or in a letter of intent:

• How much money is needed to care for pet;
• Special needs for any of the animals;
• Pet care instructions;
• Regular inspections of your pet(s) by the trustee, if desired;
• Distributions from the trust;
• Substantiation for expenses incurred;
• Money for the caregiver;
• Administrative expenses of the trust;
• Terminal illness and final disposition of pet; and
• Remainder beneficiaries once the last pet is deceased.
  

The trust will terminate at the death of the last living animal and the remaining funds will need to be distributed. It is best to designate animal organizations as the remainder beneficiary. There can be a natural conflict if a family member, the animal caretaker, or trustee is named as the remainder beneficiary; a separate and independent remainder beneficiary is best. Animal charitable organizations also tend to align with the intentions of the testator.

It is also important to note, when referring to the pets who will be provided for, to not name them but to refer to “all animals owned at the time of death.” This alleviates any identification issues with the intended animal beneficiaries. Animals should be microchipped, with the numbers added to the documents for identification purposes so the animal can be identified as part of the estate plan when it comes into action.

The ability to provide specific care instructions may be very important to the pet guardian. The questions of which veterinarian to visit, how to deal with illness, terminal illness, surgeries—all can be addressed if so desired in the trust document. The wishes can be basic or detailed; it is the decision of the settlor/pet parent. Specific wishes or instructions can also be left in supporting documents as well, for example a letter of intent.

Bequest in will. It should be noted that leaving money in a will as a direct bequest in exchange for caring for a pet comes with much risk as there is no protection for the pet. If the animal is given to a friend or relative via direct bequest in a will, that person becomes the owner and has all the rights and obligations of the pet’s care, including the right to euthanize the animal, which can be done immediately upon receipt of the animal. That person receives the money to care for the animal but then also has the ability to euthanize immediately; this happens frequently. Remember, a pet is considered property in New York state, and the owner of property can do anything they want with their property. There is also a concern regarding change in circumstances. Although someone may have agreed to take the animal and funds via direct bequest when the will was drafted, that person’s life could be much different now than when the will was drafted because of various circumstances (e.g., marriage, divorce, allergies, loss of income, different home setting). There is no protection with a straight bequest of the animal and funds.

Transitional Period

Whether a provision in the will is made or if a testamentary trust is created, there will be a period of time between death and probate where funds will be necessary to care for the pet. This is the transitional period; too often, this period is not considered. No action can be taken by the executor 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. The time between death and the authority of the executor to act can vary between several weeks and several months. Plans must be made to ensure care for the pet during this interim period. A provision should be included in all wills where an animal is involved, one that allows 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. If there is a funded inter vivos trust in place, this is a great benefit during this transitional period.

Conclusion

The above considerations may seem impossible for you as the attorney to consider and for your client to find the people needed to ensure this care, but it is not impossible. There are many who are in the position to create long-term plans to ensure their cherished pets are cared for and remain safe when they no longer can do this themselves. Unfortunately, many attorneys are either not aware of the possibilities or do not want to discuss them with their clients. Then there are attorneys who know just a little and put a provision in the will or some form of a trust in place that is useless, because they really did not understand the importance of, and some of the nuances involved with, estate planning for the family pet. They “sold” the service, but provided a complete injustice to their client and, more importantly, to their pets. A little planning is better than no planning, but it should be taken seriously and with compassion.

A short-term plan is a bit more manageable and can avoid suffering and possibly death of the animal and heartbreak for your client; but if not even considered or discussed, it is useless.

My view of this area is not only from a legal standpoint but one from the perspective of having been involved with animal rescue for more than 30 years and who has been running an animal welfare group for the past 15 years. Simply, it is bad out there for animals; all animals. Animals are exploited every single day; the more animals are exploited, the more unwanted animals  will exist in this world, and more will be abused, will suffer and will be killed. What can you do to help? Have this conversation with your clients; truly listen to what they want and please take this seriously as a crucial part of estate planning for your clients and for the lives of those who cannot speak for themselves—their animals.

She is Chair of the Suffolk County Bar Association Animal Law Committee; she is past Chair of the NYSSCPA's Digital Asset Committee as well as the International Taxation Committee. She is a member of the AICPA, the American Bar Association, and the New York State, New York City and Suffolk County Bar Associations. She is admitted to practice in New York and the Law Society of England and Wales. She received her Masters of Science degree in Taxation.

Ms. Gillespie has served on the NYSSCPA’s Tax Division Oversight Committee and its Virtual Currency Task Force. She is a TEP (Trust and Estate Practitioner) under the auspices of the Society of Trust and Estate Practitioners. She served as an adjunct Professor at Touro Law School. Ms. Gillespie lectures frequently and has authored a number of articles on topics including but not limited to, international taxation, digital assets and Estate Planning for Pets. She is the author of the “Foreign Bank Account Reporting Compliance Guide (with FATCA coverage)” published by CCH.

She also is the Executive Director of an animal welfare group, Pioneers for Animal Welfare Society, Inc. for the past 15 years and has been involved with animal welfare, animal legal issues and animal rescue for the past 30 years.