An animal is considered personal property under the laws of the United States and those of each state, and, unfortunately, can be disposed of in a person’s estate plan in the same manner as a car, furniture and jewelry. To protect your pet, you must name in your Will a person who is willing and able to take care of your pet when you die. If that person is also a beneficiary of your estate, and is completely trustworthy, you will likely not have to worry about paying for your animal’s care. But, if the caretaker is a specific individual or organization who would not otherwise be a beneficiary, then the pet owner should also consider gifting an additional amount of money for caretaking expenses and/or to compensate the caretaker.

In many cases, an outright gift or bequest in your Will may not be appropriate. What if the caretaker is unable or unwilling to take care of the pet once you are gone? What if he or she spends the money elsewhere? What if your pet hates the caretaker? The only legal device that can adequately address these issues is a Trust.

When you create a Trust, you transfer all your property, assets, bank accounts, real estate, etc. to a person or persons you “trust”. You no longer own the assets: The Trust does. You still have access to your assets while you are alive. You instruct your Trust to pay all income to you during your lifetime, and then, on your death, the remainder would be distributed to your beneficiaries. You need to appoint a trustee to oversee the trust and follow its directions, but you can be your own trustee. That means you still control your assets and decide what to do with them. After your death, your Trust would be passed on to the successor trustee named in your original Trust.

Although a Trust is preferable to naming a caretaker for your pet in your Will, establishing a valid and enforceable trust solely for the benefit of a pet can be difficult because no human beneficiary is available to enforce the terms against the trustee. An attorney who specializes in estate planning can help you find legal ways around this problem. Also, several states have passed statutes recognizing valid “pet trusts” and others have similar legislation pending. If you are concerned about your pet’s welfare, consult an attorney who is well versed in the protection of pets as you plan your estate.