Furry Beneficiaries - A Great Article in Private Wealth

From the September 2010 issue of Private Wealth - “Furry Beneficiaries”

Some of the nation’s wealthiest people are leaving huge chunks of their estates to their pets—to the chagrin of their human relatives.

By Robert Margolis

She had a $15,000 Cartier diamond necklace, a $12,000 summer wardrobe, an Escalade and a driver, a full-time nanny, a room and bath of her own, leisurely lunches at the Shore Club, manicures, pedicures, a publicist—everything a party girl could want.

Now Conchita the Chihuahua lives in Gail Posner’s $8.3 million, seven-bedroom, eight-bath mansion on a Miami Beach island with her sisters, April Maria the Maltese and Lucia the Yorkshire terrier. After Posner, daughter of corporate raider Victor Posner, died in March and left the bulk of her fortune to her pets, the dogs share the space with Posner’s service crew—the maids, bodyguards and personal trainer who inherited millions of dollars and use of the home in exchange for caring for the pooches.

In good times and in bad, Americans love their 77 million dogs, 90 million cats and assorted other domesticated creatures. And while the wealthy might be a tad more cautious with a dollar these days, when it comes to making certain “Spot” is sitting in the lap of luxury—both during and after the life of his owner—it seems that money is no object.

“The last thing I want is for my cats and dogs to be sent to a shelter,” says Barbara Monroe, a 74-year-old Sands Point, N.Y., resident who has set aside a $50,000 trust for her pet cats and dogs. “Even though I have four kids, what happens if their children are allergic or move to a place where pets are not allowed? I hope the money set aside might sweeten the pot a little so that I can find a person who will be there for my pets.”

Pet trusts are not new, but Posner’s will and other cases of furry beneficiaries do point to the fact that some of the nation’s wealthiest people view their pets as members of the family—and deserving of special estate-planning treatment.

The late singer Dusty Springfield, for example, had a will that made extensive provisions for her cat Nicholas.  The will instructed that Nicholas’ bed be lined with Dusty’s nightgown, that Dusty’s recordings be played each night at Nicholas’ bedtime, and that Nicholas be fed imported baby food.

In another example of puppy love, Doris Duke, the sole heir to Baron Buck Duke, who built Duke University and started the American Tobacco Company, left $100,000 in trust for the benefit of her dog.

Pet trusts have existed in Europe for centuries, but it took until 1990 for the U.S. Uniform Probate Code (UPC) to be changed to allow states to provide for the creation of pet trusts.  Forty-four states have since enacted pet trust laws.  Only Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi and West Virginia do not have laws authorizing pet trusts. Residents in those states, however, can create a trust for a human beneficiary with the stipulation that trust funds should be used for pet care. But such trust provisions are honorary and cannot be legally enforced.

How do you set up a pet trust to withstand a legal challenge? Francis Carlyle, vice chair of the American Bar Association’s Animal Law Committee, strongly suggests staying within reason. “I don’t allow [clients] to overfund, which would open up to a challenge,” Carlyle says. “The crucial point is to not go crazy.”

But that’s apparently hard advice for some wealthy benefactors to follow when they’re crazy about their pets. New York hotel queen Leona Helmsley, who died in 2007, set up perhaps the most famous pet trust of all time. She left $12 million to Trouble, her pet Maltese. The will set off legal battles and death threats against the dog, who would have inherited more than any human member of the family. A judge later reduced the dog’s cut to $2 million, ruling that amount would more than adequately cover the cost of Trouble’s care. The case was so volatile that Trouble had to be moved to a secret location under an assumed name. The pet’s security costs alone ranged between $100,000 and $200,000 per year.

“The original amount was insane,” Carlyle says. “That was the big problem with Helmsley and the Posner case in Florida.”

Carlyle notes that U.S. pet trust case law is still evolving.

“This is still all fairly new,” Carlyle says. “Most of the people who have set these trusts up haven’t died yet, so there are not many cases or law to set precedent.”

Posner’s son and only living child, Bret Carr, has filed a suit challenging her will, claiming that his mother’s servers and confidants brainwashed her into changing her will two years ago. While they got $27 million for watching her dog, Bret inherited just $1 million.

“This case is so extreme that the most I could take from it is to urge people who set up a pet trust to proceed with common sense, and above all else, have a dedicated trustee,” says Richard Sabra, a partner at the law firm of Ruden & McClosky in Fort Lauderdale, Fla. “I don’t think the son has much of a case here, but why leave the door open for what will certainly be challenged?”

Lawyers say the perfect time to make these provisions is when drafting a will or planning the disposition of an estate. In the eyes of the law, pets are regarded as personal property, but they do enjoy certain privileges beyond those of, say, a dining room table.

Ideally, a person will have arranged to have a trusted friend or family member care for a beloved animal. But nothing makes that commitment more firm than tying it to money in the form of a trust, attorneys say. The trustee can be the pet’s caregiver, but that does not necessarily have to be the case, they say.

“It’s also a good idea to name two or three tiers of successive [caregivers] in case the pet trustee dies or becomes disabled,” Carlyle says.

A trust can specify how many times an animal must be fed, groomed, walked and taken to the veterinarian. More typically the pet trustee is given the freedom to make those decisions. The trust terminates when the animal dies. The benefactor can specify where any remaining money is directed after the pet’s death. In many cases, it is retained by the caregiver or trustee. Sometimes it is directed elsewhere.

In either case, it’s important to find trustworthy people to watch the trust and the pets. For example, Suzanne Walsh, a Connecticut attorney, recalls a case in which a pet caregiver engaged in some mischievous behavior.

The case involved a butler who was charged with caring for a deceased benefactor’s cats in a Brookline, Mass., home. To ensure these wishes were carried out, the trustees would visit the mansion every quarter to check on the cats.

“A few years go by, and at one of the visits the bank trustees noticed that the cats were looking quite frisky,” Walsh says. “So they did some checking. It seems that the butler was replacing some of the cats that died to keep the trust going.”

To guard against future replacements, the trustees had the remaining original cats tattooed. “It was done in a humane way,” Walsh says.

Observers say they see the trend of people providing for their pets in estate plans to only increase.

Lynnette Hart, a professor of behavior and human-animal interaction at the School of Veterinary Medicine at the University of California at Davis, says that for some people, pets are no different from other members of the family.

“People are living in smaller families and more people are living alone,” she says. “We have more space available to build relationships with the animals that we have.”

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