January 2009
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Il Cane é Bella

Nearly one year ago, my parents adopted a puppy. She is an adorable Yorkshire Terrier named Bella.

My parents love this dog. LOVE this dog. Granted, she has a place in my heart, too, but…

Well, let’s put it this way: two quintagenarians cooing over this little puppy perhaps more enthusiastically than they might a grandchild is really a sight to see.

About two weeks ago, Bella turned one year old. My parents went all out and threw a birthday party for her.

A surprise birthday party.

For a dog.

Grown men and women hid, then shouted “Surprise!” at a puppy.

Then they had dog-safe cake.

(My mother – who has not baked so much as a cookie for her children in several years – baked an entire cake for the dog.)

Here is a picture of Bella dressed up for her birthday:

Bella dressed up for her birthday party

As you can clearly see from this picture, my parents either 1) absolutely adore Bella or 2) are insane.

Whatever the case, however – and despite the fact that Bella is of an entirely different species – my parents doubtlessly love Bella as a member of their family; this is something that is true of many – if not most – pet owners.

Unlike other members of the family, however, Bella cannot be provided for under traditional estate planning techniques. In simpler terms: poor Bella – beloved as she may be (perhaps even more than my brother and I) – cannot be a beneficiary under my parents’ wills.

As much a part of our families as our pets are – as much as we love our Rovers and Fluffies and Mr. Bun-Buns (et al.) – the law almost universally recognizes animals as no more than personal property. Under this premise, the law curmudgeonly concludes that, because items of personal property cannot inherit other items of personal property, it will not recognize gifts to pets.

The same goes for a trust – another common estate planning tool. To prevent trustees from doing things that trustees are not supposed to do, it is up to the beneficiary to enforce the terms of a trust. Under the traditional law of many states, an animal cannot properly enforce a trust; therefore, beneficiaries must be human.

So how does one provide for a beloved pet in their estate plan when only human beneficiaries are allowed in a will or a trust?

With a human beneficiary, of course.

LOOPHOLE OF THE DAY: The Honorary Trust

Every trust has a purpose. Without a purpose, a trust fails.

The Honorary Trust was originally a device a grantor used as part of his last will and testament to ensure that one’s family members would take care of a piece of land or property – usually the grantor’s tomb (the grantor was frequently too distracted to take care of his tomb himself, being dead and all). Under an honorary trust, the beneficiaries use the money to take care of the designated property. They are under no legal duty to do so, but once they stop doing so, the trust’s purpose (i.e., the care and maintenance of the “honored” property) becomes frustrated, and the beneficiary loses all right to the trust money.

Obviously, a good way to ensure pet care post-mortem in states that have not legislated “pet trusts” is to set up an honorary trust to take care of the pet in question. Here, the pet is not the per se beneficiary, but receives the benefit of the trust funds by way of the human beneficiary. The human beneficiary is a beneficiary in name only; s/he is more of a guardian.

The trend is increasing in a number of states, however, to treat animals more like humans. Some states are making it easier to leave money to one’s pets outright. Additionally, as long ago as 1997, a Washington state court held that a chimpanzee could be an outright beneficiary of a trust (with a guardian ad litem, naturally).

SHE LOVED TROUBLE

For a nice, extreme example of the Honorary Trust in action, we need look no farther than the somewhat recently departed Queen of Mean herself, Leona Helmsley. The hotel empress and convicted tax evader provided in her will for a $12,000,000 trust to benefit (by way of a human beneficiary/guardian) her Maltese (“Trouble”) – an amount larger than any single bequest in Helmsley’s will. The appointed trust beneficiary/guardian estimated that care for the dog would run approximately $140,000 annually (most of this being for security; poor little Trouble had death threats against her at the time). Trouble’s veterinarian estimated that Trouble would live only another three to five years. In light of this information, a New York judge reduced the amount of Trouble’s trust from $12 million to $2 million – but upheld the trust otherwise (much to the chagrin, I imagine, of the human beneficiaries of Leona’s will).

So what’s the moral of this story? Well, I suppose it’s this (with apologies to the Helmsley Hotels):

If Leona Helmsley wouldn’t settle for an estate plan that didn’t adequately care for her pet, why should you?

BELLA’S BIRTHDAY CAKE

As I mentioned above, Bella had a birthday cake at her party.

Bella's Birthday Cake

The cake is good for humans too. I had some. It is delicious.

Here is the recipe:

INGREDIENTS:

1 cup flour
1 tsp. baking soda
1 egg
1/4 cup peanut butter
1/4 cup vegetable oil
1 tsp. vanilla
1 cup shredded carrots
1 tbsp. honey (optional)

ICING/DECORATIONS: Cottage Cheese, Peanut Butter, Shredded Carrots

BAKING INSTRUCTIONS:

Mix flour and baking soda.
Add remaining ingredients.
Pour into greased 8″ round cake pan.
Bake at 350° for 30 minutes.
Let cool.
Puree cottage cheese in blender.
Ice cake with cottage cheese
Decorate with more peanut butter and carrots.
Serve and enjoy!

To see more of Bella, visit her website (yes, my parents have set up a website for her) at http://www.bellanaples.com.

- Joe Stanganelli, Esq.

This entry was posted on January 1, 2009 at 03:43 and is filed under LinkedIn, Bella, pets, estate planning. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response or trackback from your own site.

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