What Happens If You Go First?

A pet trust will provide continuing care according to your wishes — and it will be legally enforceable.

Outliving your cat is painful, but it’s the natural order, given the comparatively short feline lifespan. More difficult, and more crucial, to contemplate: What happens if you go first? Preparing for that contingency shouldn’t be done casually. You need to be specific about your wishes to make sure they’re enforceable by law and to back up your plans with money designated for your cat’s care. The good news: Most states now have laws recognizing pet trusts.
Quite simply, a pet trust is a legal arrangement that lets you designate assets, such as insurance policies, real estate, cash or a retirement fund, for the care of your cat in the event of your disability or death. You can leave assets only to a living person, says Gregory S. Alexander, J.D., Robert Noll Professor of Law at Cornell University and an internationally renowned expert in property law and theory. As a result, “You have to find someone to receive the legal title to the property [the assets] that you’re going to use to benefit the pet, and you have to find somebody willing to use that property to look after the pet.”

Several Hurdles. Prof. Alexander points out that pet trusts are not without difficulties. For one thing, the law considers pets to be property, akin to inanimate objects. Because inanimate objects can’t receive an inheritance, a trustee and caregiver must be assigned. In addition, in standard trusts, the beneficiary is the only one with standing to enforce a trust — to complain to the court, for example, that the conditions aren’t met. Obviously, cats can’t do that. For an arrangement bene-fiting a pet to be enforceable, a type of trust called an “honorary trust” must be established. Participants include:

-The settler or grantor, the person who creates the trust: That’s your role.

-The trustee: the person who will manage and distribute the funds.

-The caregiver: who may or may not be the same person as the trustee. It’s always wise to choose more than one caregiver in case circumstances change.
The beneficiary: your cat.

You can add a provision in your will stating your intentions for your cat, but that language is not legally enforceable. You have no guarantee your cat will receive the care you envisioned.

Recently, more states have enacted pet trust laws that function as honorary trusts. According to the ASPCA, 46 states and the District of Columbia have these statutes. Only Kentucky, Louisiana, Minnesota and Mississippi do not. Prof. Alexander points out that an honorary trust can exist even without legislation under the state’s common law. “Technically, it’s what lawyers call a power of appointment, meaning that the person to whom the money for the pet’s care is given is legally free to use the property for that purpose but cannot be compelled to do so.”

The Critical Steps. You will need to make sure the potential caregiver(s) understands the details of your cat’s care, including feeding, medical needs, exercise requirements and contact information for his veterinarian.

The amount of money to set aside for that care depends on your cat’s age, health and any extreme measures you want administered in case of illness. A rule of thumb is to multiply his average annual cost of care by a reasonable life expectancy, adding extra money for the caretaker’s time. (Be sure to include money for cremation or burial.) The trustee is in charge of giving the money to the caretaker according to a prearranged schedule, generally annually.

If the trustee and caregiver are different people, give the trustee a photo of your cat, microchip information and a DNA sample to protect against fraud. There have been cases of a caregiver getting a replacement cat to continue receiving money when the cat died prematurely.

Be sure to give copies of the trust to the trustee and caregivers, and stay in touch with them to update your trust in case circumstances change. You can fill out forms for a pet trust on the Internet or consult an attorney. The most important thing is to get the paperwork done, so you can have peace of mind about your cat’s future if you’re not around to guide it.