Testamentary Pet Disposition Provision 

     A trend has developed, recognized by the media, for pet owners to provide post-mortem, long-term care for their beloved pet companions.^[1]  Between 12% and 27% of pet owners include pet provisions in their wills.^[2]  However, it is axiomatic under Pennsylvania law that property cannot own property.  Therefore, a pet cannot inherit property.  How could a pet be the beneficiary of other property held in a trust? 

     A trust created for the purpose of maintaining property, like a cemetery, solely and  without a human beneficiary, is an "honorary trust.^[3]  It is ironic that Pennsylvania's appellate decisions did not authorize an honorary trust for pets, since this Commonwealth's lower court decisions are often cited in support of the concept of a reasonable fund dedicated to a pet's maintenance after its owner's death.

     In Renner's Estate, 358 Pa. 409, 57 A.2d  836 (1948), the Pennsylvania Supreme Court acknowledged the concept of an "honorary trust" found in the Restatement (Second) of Trusts, but declined to apply its principles, despite the testator's clear intention to provide for his pets.   A testator gave his home, garage, contents, pets, and flower garden to his friend, who also served as executrix. He bequeathed his residuary estate to the executrix in trust:

[F]or the maintenance of my pets [a dog and a parrot], which I leave to her kind care and judgment, and for their interment upon their respective deaths . . . . Upon the death and interment of the last of my pets to survive, I give, devise and bequeath my entire residue estate so held in trust unto the said [friend], absolutely and in fee.

The Court held that no trust was created due to a failure of a beneficiary who could call the trustee to account:

We all agree that the estate vested in the legatee at testator's death. His will meant that she should take the residue from that time; he wished her to apply as much as she considered necessary to the care of the pets and to retain the rest for her own use. There was no trust in the sense in which that term is used in courts of equity in this Commonwealth. The entire estate, legal and equitable, passed to the legatee. There was no cestui que trust who could call her to account. There was no charitable trust. She owed no enforceable duty to anyone. If she had predeceased the testator, no successor could have exercised "her kind care and judgment," which was what testator desired.^[4] 

     Later cases in Pennsylvania involving long-term pet care were decided by trial courts.  In Lyon Estate,  67 Pa. D. & C. 2d 474 (Franklin Co. O.C., 1974), a court held that a fund dedicated to the maintenance of animals could be established.  A testatrix had directed that her estate, which exceeded $1.4 million, should be applied to the care and maintenance of her animals.  Upon their death, the remainder was to be paid to Princeton University.  The court held that such a purported "trust" could not be given effect, since there was no person, corporation, or association vested with a beneficial interest who could enforce the trustee's duties.  However, the court acknowledged its "inherent power to reduce the amount involved  ... to an amount which is sufficient to accomplish [the owner's] purpose".  The court offered alternatives, one based on the "honorary trust" concept with reasonable funding, which was acceptable to the charitable residuary beneficiary.^[5]

     In Stewart's Estate, 13 Pa. D. & C. 3d 488, 30 Fiduc. Rep. 68, 1979 WL 403 (Pa.Com.Pl., 1979), a trial court cited 20 Pa. C.S.A. Section 6104, and both Lyon Estate and Renner's Estate, in permitting a fund for the benefit of a decedent's pet.  The court held:  "Although such a [common law] trust cannot be given effect, there is precedent for creating a reserve of sufficient funds for the benefit of the pets, in order to accomplish the intent of the decedent and where the executrix has agreed to undertake the responsibility".  Other Pennsylvania trial courts employed this approach.^[6]

     Since the courts focus on the intention of the testator, specific authorizations in a document as to pets can succeed when a favorable personal representative finds a cooperative court and no objecting party in interest.  This possibility raises the question:  In the event of a pet owner's death, who should receive a pet? 

     The Humane Society of the United States provides good advice:

If all else fails, it is also possible for the client to direct his executor or personal representative, in a will or some other estate planning document, to place his animals with other individuals or families (that is, in a non-institutionalized setting).   Finding a satisfactory new home can take several weeks of searching; again, it is important to line up temporary care.   Clients also need to know and trust their executors an provide useful -- but not unrealistically confining -- instructions in their wills. They should also authorize their executors to expend funds from their estates for the temporary care of their pets, as well as for the costs of looking for new homes and transporting the animals to them. The will should also grant broad discretion to the executors in making decisions about the animals and in expending estate funds on the animals' behalf.^[7]

I propose use of a broad provision, which could be edited to reflect the client's needs or intentions involving a pet.^[8]  To the extent that an owner includes a supporting fund intended to entice acceptance of a bequest of a pet, or to assist in anticipated maintenance expenses for the pet, I suggest additional language.^[9]

     In his practical materials posted online, Professor Beyer addresses the primary goal of the pet owner's attorney to carry out the pet owner's intent to the fullest extent allowed under applicable law.^[10]  He reviews techniques currently available and comments on the advisability of each, including: a common law inter vivos or a testamentary trust^[11]; an outright gift of the pet, with cash, subject either to a condition precedent or a condition subsequent binding the recipient to care for the animal; an outright gift of the pet, with cash, to a veterinarian or a "no-kill" animal shelter; or an outright gift of the pet, with cash, to an institutional "pet life care center" in exchange for a promise of care for the pet.^[12]

     It is not the intention of this article to provide explicit forms for "estate planning for pets", but instead to refer the pet owner or practitioner to current reliable reference sources.  Since each "pet planning" situation is distinctive, the practitioner should review standard approaches regarding "estate planning for pets" and implement appropriate documents.  Starting points are forms made available by Professor Beyer,^[13] the Humane Society of the United States,^[14] the American Bar Association,^[15] the New York City Bar Association,^[16] and various legal or animal rights organizations, and commercial vendors^[17].   Consumer-oriented or organizational membership resources may be useful.^[18]   Scholarly references are available online for those seeking case law guidance.^[19]

Uniform Laws Benefiting Pets 

     In 1990, the National Conference of Commissioners on Uniform State Laws added a section to the Uniform Probate Code ("UPC") to validate "a trust for the care of a designated domestic or pet animal and the animal's offspring."  Section 2-907, as amended in 1993, provides for a valid "honorary trust" in a form specifically applicable to the "care of a designated domestic or pet animal", but places a twenty-one year limit on such a trust's duration.^[20]  In 2005, the Commissioners finalized a Uniform Trust Code ("UTC"), which included provisions for an "honorary trust" for pets under its Section 408.  As states have adopted some form of the UTC, these pet trust provisions usually have been included.  Closer to home, in 2001, New Jersey adopted legislation authorizing trusts for domesticated animals.^[21]   

     The ASPCA reports that "As of 2015, 49 states plus the District of Columbia have enacted pet trust laws. The state that has not enacted a pet trust law is Minnesota."  Michigan State University, on its website shows all states with pet-focused laws.

 

 Benefits of a UTC Pet Trust

 

     In summary, the UTC provides the best method for establishing a pet trust for several reasons.  First, the UTC overrides the rule of perpetuities by matching the allowable period of the trust to the length of the lifespan of the designated animal or animals.  While the UPC also sets the yardstick for the duration of an animal trust to the measuring life of the designated animal, the UPC only provides for a single animal, while the UTC permits multiple animals to be covered by the trust.  The UTC  requires a trust to terminate only at the death of the last covered animal.

 

     Second, the UTC provides greater enforceability to pet trusts than does the UPC, providing greater assurance for the pet owner.  The provisions permit any person, not one specifically designated in the trust instrument as permitted by the UPC, to petition a court to evaluate whether or not the trust beneficiary or trustee is acting in accordance with the trust document.^[35]  In addition, under the UTC, the trust beneficiary, who is the animal's caretaker, has rights of a qualified beneficiary,^[36]so that the trustee is held accountable for actions in administering a trust.  In contrast, the UPC provides that a trustee has no filing, reporting, or other fiduciary responsibilities designed to hold a trustee accountable, unless specifically provided in the trust instrument. 

Development of a Pet Trust Statute in Pennsylvania

     Beginning in 1999, a six-member drafting Subcommittee, of the Advisory Committee on Decedents' Estates Laws, of the Joint State Government Commission (ACDEL-JSGC), worked to tailor the Uniform Trust Code, as offered by the National Conference of Commissioners on Uniform State Laws,^[29] into a form for Pennsylvania (known as the "Pennsylvania Uniform Trust Act" or "PA UTA").  The task of the Subcommittee was to mold the UTC into a form maintaining basic uniformity with nationally-recognized concepts and provisions that would be suitable for Pennsylvania, while considering the authority of substantial common law developed in Pennsylvania regarding trusts.  The Subcommittee accepted the concept of a "pet trust" in Pennsylvania, which was likewise accepted by the full Advisory Committee. These provisions within a PA UTA were proposed to the Pennsylvania Legislature in 2003.^[30]   The PA UTA received further attention by ACDEL-JSGC in 2004, and was reintroduced in the Legislature in April, 2005^[31] as Senate Bill 660.

     The recommended PA UTA legislation included proposed Sections 408 and 409 of the UTC regarding non-charitable trusts for animals, without any alteration from the UTC to preserve uniformity.  Section 408 of the UTC became PA UTA Section 7738 ("Trust for care of animal")^[32], and Section 409 became PA UTA Section 7739 ("Non-charitable trust without ascertainable beneficiary").^[33]   The JSGC's Report incorporated by reference the official comments found in the UTC after its Sections 408 and 409, which explain the concepts and the interplay of these sections, as follows:

UTC's "Pet Trust" Provisions

     These two sections  validate "honorary trusts". Unlike honorary trusts created pursuant to the common law of trusts, which are arguably no more than powers of appointment, the trusts created by these section are valid and enforceable.

•      Subsection 408 (b) addresses the concern of enforcement of such an established honorary trust for a pet.  The intended use of a trust authorized by either section may be enforced by a person designated in the terms of the trust or, if none, by a person appointed by the court. Where an honorary trust is created for the care of an animal, a person with an interest in the welfare of the animal has standing to petition for an appointment. The person appointed by the court to enforce the trust should also be a person who has exhibited an interest in the animal's welfare.^[34]

 

•      Subsection 408 (c) addresses the problem of excess funds. If the court determines that the trust property exceeds the amount needed for the intended purpose and that the terms of the trust do not direct the disposition, a resulting trust is ordinarily created in the settlor or settlor's successors in interest, including beneficiaries under will or heirs of the settlor. However, the settlor may also anticipate the problem of excess funds by directing their disposition in the terms of the trust.  While a trust for an animal is usually not created until the settlor's death, subsection (a) allows such a trust to be created during the settlor's lifetime. Accordingly, if the settlor is still living, subsection (c) provides for distribution of excess funds to the settlor, and not to the settlor's successors in interest.  Should the means chosen not be particularly efficient, a trust created for the care of an animal can also be terminated by the trustee or by the court, if an alternative means for carrying out the trust purposes is developed.

 

•      Section 409 specifies the requirements for trusts without ascertainable beneficiaries that are created for other noncharitable purposes. A trust for the care of an animal may last for the life of the animal. While the animal will ordinarily be alive on the date the trust is created, an animal may be added as a beneficiary after that date as long as the addition is made prior to the settlor's death. Animals in gestation but not yet born at the time of the trust's creation may also be covered by its terms. A trust authorized by this section may be created to benefit one designated animal or several designated animals.

Enactment of a Pet Trust Statute in Pennsylvania

 

The pet trust provisions proposed for Pennsylvania law remained untouched in the PA UTA package in the form of SB 660.  SB 660 passed the Senate at the end of January, 2006.   Two sets of amendments then were requested while SB 660 was under consideration in the House and its Judiciary Committee.^[37]  Neither related to the pet trust provisions; and both were incorporated in later versions.^[38]  During House committee consideration, In the legislative pet‑loving Representatives in the House noticed and supported the "pet trust" concept as an element of the PA UTA.  The House adopted a final version of SB 660 on June 29, 2006, which then received concurrence by the Senate on July 1, 2006.^[39]

 

On July 7, 2006, Governor Rendell signed the adopted version of SB 660, which was known as Act 98 of 2006.  It added a new Chapter 77 to the PEF Code, in Title 20 of Pennsylvania Consolidated Statutes.  The PA UTC, with its "pet trust" provisions, became effective as of November 6, 2006.^[40]

 

Thus, the Uniform Trust Code's "pet trust" solution is law, too, in Pennsylvania, providing a reliable framework for long-term, owner-absent, pet care for Pennsylvanians.^[41]

^[1]  See When the Client Wants to Leave It to THE CAT, Journal of Accountancy, July, 2001; Trusts To Care For Pets After-Death Catching On", Lawyers Weekly USA, July 22, 2002; "Animal Owners Set Up Trust Funds for Their Pets", USA Today, August 16, 2002; and "Providing for Fido" Financial Advisor, January, 2003.

^[2]  See Anne R. Carey and Marcy E. Mullins, "Snapshots -- Man's Best Friend?", USA Today, Dec. 2, 1999, at 1B (12%); Vital Statistics, Health, Oct. 1998, at 16 (18%); and Elys A. McLean, "Snapshots -- Fat Cats -- and Dogs", USA Today, June 18, 1993 at 1D (27%).

^[3]  According to Section 124 of Restatement 2d, Trusts, where property is transferred in trust for a noncharitable purpose and there is no definite or definitely ascertainable beneficiary designated (as for the care of animals), then no trust is created.  However, the transferee has the power, if exercised, to use the property for the designated purpose. The trust is subject to the rule against perpetuities.  It may not be held for a purpose extending beyond the lives in being plus twenty-one years.

^[4]  Renner's Estate, 57 A.2d at 838.

^[5]  When I reviewed Lyon Estate in the early 2000s during a presentation at the Pennsylvania Bar Institute's Estate Law Institute, I complimented the Franklin County Court for its very practical resolution.   A lawyer from Chambersburg raised his hand, and reported to the audience, "One of the horses is still living in trust on the farm!"

^[6]  See Hackett Estate, 30 Fiduc. Rep. 237 (Orphans' Ct. 1979); and Templeton Estate, 4 Fiduc. Rep. 2d 172 (Orphans' Ct. 1984).

^[7]  The Humane Society of the United States Humane, on its website, provides sample language to accomplish a pet owner's outright disposition of a pet. 

^[8]  My suggested language for a specific bequest  is as follows:

I bequeath to [specific legatee(s)], if [he/she] survives me, my [name & description of pet animal OR class of identified companion animals] (my "Pets"), together with such other records, supplies, furnishings, and equipment used or usable for, or related to, maintenance of my Pet, as shall be requested by the specific legatee within thirty (30) days of the delivery by my Personal Representative of my Pet in satisfaction of this bequest.  If the specific legatee does not so survive me, then I make this bequest to [alternate legatee]; but if no such named legatee should so survive me, then I grant to the last named legatee the right, exercisable in writing either during lifetime or in a testamentary document, the ability to name a successor legatee to receive my Pet, which designation shall be honored by my Personal Representative if received within sixty (60) days of my death. 

In the event any such named legatee does not survive me, my Personal Representative shall have the authority and direction to donate my Pet, upon such terms as my Personal Representative shall determine reasonable or necessary, to a "no-kill" charitable animal care organization, so that the life of my Pet shall be preserved.  In making such an alternative dispostion, my Personal Representative may consult with the other beneficiaries of my estate, my Pet's veterinarian, or such animal protective organizations as deemed necessary; but the disposition decision of my Personal Representative shall be final.

I direct that this bequest shall be satisfied as promptly as possible.  In the event of delay in satisfaction of this bequest, I authorize and direct my Personal Representative, as an expense of my estate=s administration, to arrange and pay for temporary maintenance of my Pet, including necessary insurance coverage and veterinarian expense, with a similar standard of care and attention as provided by me during my lifetime to my pet.  If my Personal Representative so maintains my Pet, my Personal Representative shall be relieved of liability, risk of loss, or damage arising from my Pet.

^[9]  The suggested additional language is as follows: 

My Personal Representative is authorized to expend, either as a prepaid administrative expense of my estate or as a charitable donation, a sum not in excess of [$ xx] for each Pet subject to such bequest or donation.  After such arrangements are consummated and this bequest satisfied, my Personal Representative shall not have any further duty as to my Pet or to enforcement of any such disposition.

^[10] "Estate Planning for Non-Human Family Members", by Gerry W. Beyer (updated 06/02/14).

^[11]  Id. Issues involved in a common law trust include: designating a trust beneficiary or an animal caretaker; nominating a trustee; bequeathing the animal to the trustee, in trust; determining the amount of other property to transfer to the trust; describing the desired standard of living for the pet; specifying a distribution method; establishing additional distributions for the caretaker; limiting the duration of the trust; designating a remainder beneficiary; identifying the animal to prevent fraud; requiring the trustee to inspect the animal on a regular basis; determining the amount of other property to transfer into the trust; and providing instructions for final disposition of animal remains.

^[12]  A premier example of a private animal life care facility is the Stevenson Companion Animal Life‑Care Center, associated with the College of Veterinary Medicine of Texas A&M University, in College Station, Texas, described online here.  An organization in Pennsylvania working to create such a facility is the Animal Welfare Project, of Valley Forge.

^[13]  See link here, with forms updated as of May 10, 2010.

^[14]  See Providing for Your Pet's Future Without You, a brochure complete with a six-page fact sheet, wallet alert cards, emergency decals for windows and doors, and caregiver information forms.

^[15]  See Estate Planning Issues Involving Pets, by Rachel Hirschfeld, posted by the American Bar Association (July, 2009); and Helping Clients Provide for Pets in Their Estate Plans (PDF), by Robert E. Blizard, Roger A. Kindler, Murdaugh S. Madden, and Nancy Peterson, published through the  ABA's Section on Real Property, Probate, and Trust Law, in Probate & Property (Nov/Dec, 2004), Vol. 18, No. 6.  The authors, all of whom held positions with the Humane Society of the United States, recommend that a pet owner's effective estate plan should include a special will, trust, or other document to provide for the care and ownership of pets, as well as the money necessary to care for them.

^[16]  See Providing For Your Pets In The Event of Your Death or Hospitalization (revised May 2016), which covered the following topics: Designating Caretakers; Providing Funds for Pet Care; Designating a Shelter or Charitable Organization To Care for Your Pets; Making a Conditional Bequest; Establishing a Trust for Animals (based on NY law); Providing for Euthanasia If Care takers Cannot Be Found; Providing Funds for Pet Care During The Transitional Period; Planning for Short‑Term Pet Care; Arranging for a Shelter or Charitable Organization to Provide Short‑Term Care; Emergency Instructions; Providing Copies of Instructions to an Executor; Sample Will Provisions (five types); and Sample Note to Carry in Wallet Regarding Emergency Care of Pets.

^[17]  See, for example,  Every Dog's Legal Guide: A Must-Have Book for Your Owner, 7th Edition (2012), by Mary Randolph, J.D., Nolo Press; and All My Children Wear Fur Coats, by Peggy R. Hoyt (2002-2010).

^[18]  See, for example, Pet Trust Laws  and Pet Trust Primer, both posted by the ASPCA; Backup Plan, posted by The Humane Society of the United States (June 20, 2013); In Pets We Trust, by Laura Daily, posted by AARP (June 2008) Human-Animal Bond: Leaving your Pet a Future", posted on the website of the American Animal Hospital Association;"Estate Planning for Animal People: Making Bequests to Animal Charities, and Setting Up Trusts to Benefit Animals", posted on the website of Animal People Online; and An Introduction to Pet in Wills and Pet Euthanasia",  by Suzette Daniels, Michigan State University - Detroit College of Law (2004), posted on its Animal Legal & Historical Center website.

^[19]    See, for example: Analyzing Contract and Residence Issues Regarding Pets Upon Divorce or Separation", by Eithne Mills & Keith Akers, Family Law Quarterly, 36 Fam. L.Q. 283 (Summer, 2002); "Pet Animals:  What Happens When their Humans Die?", by Gerry W. Beyer, Santa Clara Law Review, 40 Santa Clara L. Rev. 617 (2000); and "Estate Planning for Pets", by Gerry W. Beyer, Probate and Property (Jul-Aug, 2001), Vol 15,  No. 7.

^[20]  Uniform Probate Code, Section 2-907 & comment (1990).  The current version of the Uniform Probate Code was amended in 2010.  

^[21]  Effective July 10, 2001, New Jersey recognized the validity of trusts for domesticated animals.  See P.L.2001, c. 144, New Jersey Statutes, Title 3B., Chapter 11., Article 6., "Trusts for Domesticated Animals", '1 - C.3B:11-38, found online in a final signed bill form.

^[22]  For a summary of the status of state laws regarding trusts for companion animals, see "Wills & Trusts: Related Statutes", posted by Michigan State University - Detroit College of Law, on its Animal Legal & Historical Center website; and see "Animal Law", National Association for Biomedical Research, which posted on its Animal Law Section, a summary of the status of all state pet trust laws.

^[23]  Arkansas, District of Columbia, Kansas, Maine, Missouri, Nebraska, New Hampshire, New Mexico, Oregon, South Carolina, Tennessee, Virginia, and Wyoming.

^[24]  These modifications have generally been minor, and usually involve limitations on the duration of the pet trust.  In addition, both Virginia and Oregon inserted provisions that such trusts should be liberally construed to presume against the merely precatory or honorary nature of the trust in favor of the benefit of the animal.

^[25]  Alaska, Arizona, Montana, North Carolina, Michigan, South Dakota, Hawaii, Illinois, and Colorado.

^[26]  U.C.A. Section 75-2-1001 (effective 1998, amended 2003).

^[27]  Florida, Idaho, Indiana, Iowa, Nevada, New York, Washington, Rhode Island, and Texas.

^[28]  West's Ann. Cal. Prob.Code Section 15212 (effective 1991); W.S.A. Section 701.11(1) (effective 1969).

^[29]  The National Conference of Commissioners on Uniform State Laws posts information about the Uniform Trust Code and its current model form (2005).

^[30]  See: Joint State Government Commission's 2003 Report to the Legislature, introduced in November, 2003.

^[31]  See: Joint State Government Commission's 2005 Report to the Legislature, and its revised proposed legislation.

^[32]  Section 7738. Trust for care of animal - UTC 408:

 

(a) Creation and termination. -- A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

 

(b) Enforcement. -- A trust authorized by this section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

 

(c) Limitation. -- Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the trust instrument, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

^[33] Section 7739. Noncharitable trust without ascertainable beneficiary (UTC 409):

Except as otherwise provided in section 7738 (relating to trust for care of animal - UTC 408) or by another statute:

 

(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than 21 years.

 

(2) A trust authorized by this section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court.

 

(3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the trust instrument, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

^[34]  The concept of granting standing to a person with a demonstrated interest in the animal's welfare is derived from the Uniform Guardianship and Protective Proceedings Act, which allows a person interested in the welfare of a ward or protected person to file petitions on behalf of the ward or protected person. See, e.g., Uniform Probate Code Sections 5-210(b) & 5-414(a).