Fat Cats & Lucky Dogs: How to Leave (Some of) Your Estate to Your Pet: Everything You Need to Know to Protect Your Pet If You Become Sick or Die

By Barry Seltzer, B.A, LL.B, TEP and Gerry W. Beyer, J.S.D., LL.M., J.D., B.A.

By taking a few easy steps, you can improve your pet’s chance of survival should you be unable to look after it due to temporary or permanent illness or even death. But if you want more than survival for your pet you will need a comprehensive plan that legally allows you to provide a caregiver and the funds needed to look after Fido or Felix. This book, by Toronto lawyer and estate law practitioner, Barry Seltzer, and Texas Tech University School of Law professor Gerry W. Beyer takes you through a step-by-step process for making sure you can provide long-term care for your pet. Fat Cats and Lucky Dogs will interest pet owners in the United States, Canada, Great Britain, Australia, New Zealand and other countries whose legal system is based on English common law. While it cannot replace a lawyer in your jurisdiction, it can offer ideas and strategies for protecting your animal friends.

• Language: English
• Publisher: Prism Publishing, Inc.
• Release date: Oct 24, 2012
• ISBN: 9780966431360

Book preview

Fat Cats &

Lucky Dogs

How to leave (some of) your

estate to your pet

Barry Seltzer

B.A. LL.B., TEP (Preferred area of practice – estate law)

Barrister and Solicitor

Gerry W. Beyer

J.S.D., LL.M., J.D., B.A. (Professor of Law)

Edited by

Jim Bee

Prism

Publishing Inc.

Toronto, Ontario, Canada • Delray Beach, Florida, U.S.A.

Copyright © 2010 by Barry Seltzer & Gerry W. Beyer

All Rights Reserved

No part of this book may be used or reproduced in any manner whatsoever without the written permission of the authors, except in the case of brief quotations embodied in critical articles or reviews.

Prism Publishing Inc.

9140 Leslie Street, Ste. 204

Richmond Hill, Ontario, Canada L4B 0A9

[e-mail]

ISBN 978-0-9664313-6-0

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Book Design by Ledden Design

www.leddendesign.com

Cover Illustration by Janet McLeod

A Note on the Type

This book was set in ITC Esprit, which was designed by calligrapher and type designer Jovica Veljovic for the International Typeface Corporation in 1985.

ITC Esprit incorporates old style characteristics with calligraphic features.

This book is printed on FSC paper.

Supporting responsible use of forest resources.

Other Publications by the authors:

Seltzer, Barry

No One Should Have an Unplanned Death, Wills, Powers of Attorney, Taxes, Estate Administration. – 1st edition

Beyer, Gerry, W.

Wills, Trusts, and Estates – Examples and Explanations (4th edition 2007)

Modern Dictionary for the Legal Profession (4th edition 2008)

Wills, Trusts, and Estates for Legal Assistants (3rd edition 2009) (co-authored with John C. Hanft)

Beyer’s Texas Property Code Annotated – 2008–2009 Edition

West’s Legal Forms – Real Estate Transactions Residential –Volumes 19 & 19A (4th edition 2008)

Texas Wills and Estates: Cases and Materials (6th edition 2008)

Texas Estate Administration: Cases and Materials (2008)

West’s Texas Forms – Administration of Decedents’ Estates and Guardianships –Volumes 12, 12A, & 12B (3rd edition 2007) (co-authored with Aloysius Leopold)

Texas Estate Planning Statutes with Commentary (2008) (Aspen Publishers)

Texas Trust Law: Cases and Materials (2007)

Teaching Materials on Estate Planning (3rd edition 2005)

Texas Law of Wills – Volumes 9 & 10 of Texas Practice Series (3rd edition 2002)

To contact the authors:

Barry Seltzer

Barrister and Solicitor

B.A. LL.B., TEP

9140 Leslie Street, Unit 204

Richmond Hill, Ontario

Canada, L4B 0A9

[e-mail]

Professor Gerry W. Beyer

Governor Preston E. Smith

Regents Professor of Law

Texas Tech University School of Law

1802 Hartford Street

Lubbock Texas 79409-0004 U.S.A.

[e-mail]

Quantity discounted orders available for groups. Please make enquiries to 905-475-9001. Internet e-mail: [e-mail]

Acknowledgements

We want to gratefully acknowledge and thank the following people for their contributions to the book:

Toronto tax and estate lawyer Phil Friedlan, who read through the manuscript and made a number of significant comments and suggestions; research assistants Adam Fulkerson and Kyle Wolf of Lubbock, Texas; and Ruth Cohen, who assisted in expediting the project through the design and printing stage.

TABLE OF CONTENTS

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PREFACE

INTRODUCTION

APPENDICES

GLOSSARY

INDEX

PREFACE

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On August 20, 2007, Leona Helmsley, a reclusive billionaire hotel operator and real estate investor, died of congestive heart failure at her home in Greenwich, Connecticut, at the age of 87.

In life, Ms. Helmsley was a flamboyant woman with an alleged despotic personality that earned her the nickname Queen of Mean. Some of her employees complained that even the slightest mistake might be grounds for firing.

An often-cited example of her meanness occurred after her only son died in 1982. She sued his estate for money and property that she claimed he had borrowed from her. Her son’s widow, and the mother of her four grandchildren, received an eviction notice for one of the disputed properties. The widow ruined herself financially fighting her mother-in-law in court.

Seven years later, the United States government convicted Ms. Helmsley of federal tax evasion and other white-collar crimes, sentencing her to 16 years in prison. She was released after serving only 19 months.

In 2001, a Chicago Sun-Times article portrayed her as living alone with her little Maltese dog, Trouble, who remained her constant companion for the rest of her life. At the time, she was estranged from her grandchildren and had few friends.

Despite her unsavory reputation, Ms. Helmsley was generous in her charitable donations. She gave $5 million to help families of New York firefighters after the attacks of September 11, 2001, and another $5 million to hurricane Katrina relief. In addition to other contributions, she gave $25 million to New York’s Presbyterian Hospital for medical research and millions in the 1990s to help rebuild African-American churches that had been burned in the South.

In death, Ms. Helmsley left most of her estate – estimated at $5-8 billion – to her family charitable trust, which appears to be dedicated to the care of dogs. Two of her four grandchildren received $5 million in trust and another $5 million outright, provided they visited their father’s grave once each calendar year. Her other two grandchildren received nothing for reasons that they apparently well knew. She also left $100,000 to her chauffeur.

But the real blockbuster in her will was the $12-million trust fund she left for the care of little Trouble.

Like many of us, Ms. Helmsley wanted to make certain that her dog – perhaps her only friend in her later years – would not be ignored, forgotten, or simply disposed of after her death.

Because she was rich and famous (or infamous, take your pick) she was able to provide a very large trust fund for her pet – large enough to make the international media sit up and take notice. The tale of the $12-million dog was a major story around the world for several days. It therefore served several purposes:

Unfortunately for Ms. Helmsley and Trouble, disgruntled relatives and a cooperative judge managed to undo the trust agreement by reducing it to $2 million and awarding $6 million to each of the two disinherited grandsons – all on the basis that their grandmother was not of sound mind when she concocted her will and trust agreements.

Ms. Helmsley had asked in her will that either her brother, Alvin, or her grandson, David, take the dog and use the $12 million for its care. Any money remaining in the trust after the dog’s death would go to the family charitable trust. Because Alvin was already inheriting $15 million, and had no need for any additional funds, he passed on caring for Trouble, as did David, who also had his own inheritance and little interest in an animal that was reputedly as mean as its former mistress.

By early 2009, the little dog was being cared for by Carl Lekic, the general manager of the Helmsley Sandcastle Hotel. Mr. Lekic says the $2 million left to look after Trouble is more than sufficient for her care over the remainder of her life. He, of course, collects a caregiver fee.

As of September 2009, the case regarding the bulk of Ms. Helmsley’s estate remained unsettled, with the courts deciding that the trustees were free to give the money to whichever charitable causes they saw fit, rather than primarily to organizations that cared for dogs. Three leading charities said they would try to have this aspect of the court ruling overturned. The case goes on.

So despite some bumps along the way, Ms. Helmsley did manage to ensure the ongoing care of her canine companion. Had there been no trust provision, Trouble would likely have been in real trouble, considering no one really wanted her.

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And that is the focus of this book – to point out the pitfalls involved in setting up ongoing care for pets when their owners can no longer provide it, and to establish ways to counter these pitfalls.

This book is intended only as a vehicle for sharing information and ideas; for providing guidance to those who would like to explore various possibilities; and for stimulating pet owners to take action while they are able to do so. It is not intended to replace sound legal advice from a practicing lawyer in your particular part of the world.

While this book was largely written for pet owners in the United States and Canada, it should also be useful in other jurisdictions where the legal system is based on English common law, including Great Britain, Australia, New Zealand and parts of the Caribbean.

That said, even within national borders, the laws governing estate affairs and animals vary from state to state, province to province, and municipality to municipality. Wherever you live, you will need local legal advice before taking any action that may affect your estate plan and your pet’s future.

If you have comments, questions or concerns regarding the information in this book, please pass them along to us, either by e-mail or regular mail. Our addresses may be found at the front of this book.

A note on terminology

We use the term pet owners to describe people who keep animals for companionship and out of affection for them (rather than for commercial purposes, such as breeding or racing). We refer to the animals they keep as pets, a term that can include almost any type of animal, from small rodents, fish and snakes to ferrets, cats, dogs, birds and horses.

Animal rights groups use the term companion animal rather than pet. And they substitute animal guardian for pet owner, in part because they reject the notion of animals as property. We are sympathetic, but we have to work within the context of the law as it stands and, in this respect, animals are currently considered property in almost all jurisdictions.

We use the term caregiver to describe the person or institution in whose care a pet is left by its original owner.

In this book, the term companion animal is used in sample paragraphs that may be inserted into a will where we want to make it clear that, in the event of an emergency, specific pets are left to the care of others as companions, not as working animals, caged captives or as property to be sold, traded or given away to third parties.

Otherwise, we avoid substituting the term companion animal for pet in the text of the book because we believe most people take the term to mean a mammal, specifically a dog or cat. Many people have difficulty thinking of birds, rodents and reptiles as companions. Yet, for the purpose of this book, we want readers to feel they can, and should, include members of these other groups of living beings in their estate plans, or in informal arrangements with friends and relatives, even though they may not fit the public perception of a companion animal.

INTRODUCTION

Pets have been important to humans for many thousands of years. Dogs, for example, were domesticated in Mesolithic times (more than 10,000 years ago in the Middle Stone Age) by our hunter-gatherer forefathers – likely for very practical purposes – guarding camps, hauling sleds and the like. But if early dogs were anything like their modern counterparts, they soon ingratiated themselves as friends and loyal companions.

Our ancestors took a fancy to other animals as well. Cheetahs were first tamed by the Sumerians and were kept by the ancient Egyptians. In later times, they were companions to a number of historical giants, including Genghis Khan, Akbar the Great and Charlemagne. Hawks and falcons were also tamed and trained as hunters and hunting companions to generations of men throughout prehistoric and historic times.

The common house cat has been with us for four or five millennia. The ancient Egyptians frequently embalmed them, perhaps to keep their human owners company in the afterlife.

In later times, the Prophet Muhummad reportedly once cut off the sleeve of his robe so he wouldn’t wake his sleeping cat, Muezza, when he was called to prayer. The 18th century English writer, Samuel Johnson, would personally fetch oysters for his favorite cat, Hodge, so his servants would not come to dislike the animal from having to serve it themselves.

In more recent times, many of our villains and heroes have been pet lovers. Josef Stalin was apparently a cat fancier; Adolph Hitler liked large dogs; United States President Franklin D. Roosevelt owned a Scottish terrier named Fala; and his successor, Harry Truman, had a pet goat named Dewey’s Goat.

Winston Churchill adored a cat named Nelson and kept an entire menagerie that included lambs, pigs, cattle, swans and, at one point, a leopard. In fact, a clause in Churchill’s will states that his home at Chartwell is to be occupied by a ginger cat in perpetuity.

And in a January 19, 2004, feature that appeared in a British tabloid, the Daily Mirror, reporter Bill Barrows revealed that Churchill’s pet parrot, Charlie, had just turned 104.

In the article, Barrows writes:

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Her favorite sayings were ‘F*** Hitler’ and ‘F*** the Nazis.’ And even today, 39 years after the great man’s death, she can still be coaxed into repeating them with that unmistakable Churchillian inflection.

The tradition of pets in the corridors of power continues to this day. In the United States, for example, all recent United States presidents have had First Pets, generally cats or dogs.

President Bill Clinton’s family had a Labrador retriever named Buddy and a cat named Socks, who died in 2009. George W. Bush brought a Scottish terrier named Barney, an English springer spaniel named Spot, and a cat called India (nicknamed Willie) into the White House. On his ranch in Crawford, Texas, President Bush kept a longhorn cow named Ofelia, named after someone who worked with him when he was the governor of Texas.

President Barak Obama and his family selected a Portuguese water dog named Bo as the White House pet – and subsequently triggered a surge of interest in the breed across North America and the United Kingdom.

But some earlier American presidents and their families were far more flamboyant when it came to pets. The wife of John Quincy Adams (Louisa Catherine), the 6th president, kept silkworms. Herbert Hoover, the 31st president, had an opossum. And Calvin Coolidge, the 30th president, walked a raccoon named Rebecca on a leash. Theodore Roosevelt, the 26th president, was famous for his many pets. And his six children were said to have kept snakes, dogs, cats, a badger, birds, guinea pigs and more.

For many people in less exalted positions, their pets are also their favorite companions. Several years ago, the American Animal Hospital Association conducted a survey of 1,019 pet owners to determine the role their pets played in their lives. Some 57% said they would want a pet as their only companion if they were stranded on a deserted island; 55% considered themselves a parent to their pets; and 80% selected companionship as the main reason for having pets.

Since people feel so strongly about their pets, it stands to reason they would want to provide for their pets if they predecease them. Consequently, estate planners, especially in the United States, are drafting more trusts to provide care for clients’ pets. A number of states have even passed legislation relaxing the technicalities of trust creation, making it easier for pet owners to provide for pets. If a pet owner does not name a person to enforce a trust, the courts can appoint someone to act on the animal’s behalf.

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One state, Wisconsin, recognizes trusts for pets as valid, but does not provide for their enforcement should the trustee decide not to implement them.

At the time of writing, about 40 states plus the District of Columbia recognize pet trusts in some form. As the demand for pet protection increases, however, other states will come on board. You can check in Appendix H of this book, on the Internet, or with your lawyer to find out whether the state in which you live recognizes and provides for the creation of pet trusts, or whether such recognition is under consideration.

In states and in countries where such trusts are not permitted, attorneys are setting up trusts that are more obliquely designed to protect pets. These trusts name a pet caregiver as the beneficiary who can receive monies from the trust, provided an animal is cared for according to terms spelled out in the trust.

Both types of trusts are increasingly popular as more people ponder the fate of their pets after their death. No one wants to think of Fido or Fluffy winding up on death row at the local pound. Attorneys in some United States jurisdictions report that, when asked, 90% of their pet-owning clients want to make provisions for their animals, either through trusts or some other mechanism.

Trusts are often the most useful instrument available for clients who have few relatives or friends, or who have pets, such as horses or parrots, that are more difficult to care for than a dog or cat. In some cases, where people are largely alone in the world, their pets are the children for whom they must provide.

We hope you find this book informative and enjoyable and that it encourages you to include your animal companion in your long-range financial planning activities.

Message from a pet whose owner did not make plans

This morning I woke up feeling great. Ran to the door and found my best friend waiting for me. We went for our usual morning walk. My friend does most of the talking, but I am happy just to be listening. My best friend’s words are always soothing and comforting. After our walk, we went back home and had breakfast together. I got kissed on my nose and my best friend went off to work. Now comes my boring time. I walk around the house making sure everything is safe and secure, then I just lay on the couch or the bed or the easy chair waiting for my best friend to come home.

Today is different. Night has fallen. My friend normally is home by now. It is getting late. I’m starting to worry. I hope she gets home soon. I’m starting to get hungry. You know I don’t care if I get to eat or not. I don’t complain. Please come home. I miss you. I am so tired now. Why is it getting light out again? This is so strange. I need to get on the bed. I can smell my friend was here. This is where I feel safe. Wait! I hear someone at the door – it must be her, No, it is someone I don’t know. Who are you? Why are you coming in here?

Are you going to hurt me? Rob my friend’s home? What am I supposed to do? I know. I will act mean. I will growl, bark, defend my friend’s home the best that I can. They have just put a leash on me. They are trying to talk calmly to me, but I don’t trust them. I will still act mean. I just heard them say my friend’s name and something about a fatal heart attack. Now I am in a small cement barred area. This is not the food I normally eat. These are not the smells I normally smell. I am so scared. I still need to act mean. I know my friend must be trying to find me. I have been here for about a week now. I hear people talking about me being aggressive. Wait. They are opening my door.

They are putting that leash on me again. My friend must be here. Now I am in the exam room. Oh I see the needle again. My friend always told me the needles will help keep me healthy. I felt the pinch-this needle is different. Something is happening. I feel very sleepy...where is my friend?

(Reprinted by permission of Amy Shever, Director of 2nd Chance 4 Pets.)

Footnote: Although the above message may seem a little emotional, consider the fate of American writer Dorothy Parker’s last little dog, which she had named C’est Tout (That’s All).

When Parker died in her Manhattan apartment in June 1967, C’est Tout was found whimpering beside her body, heartbroken and loyal to the end.

In her will, Parker left the bulk of her modest estate to the National Association for the Advancement of Colored People (NAACP). She had made no provision for her dog, however. Poor little C’est Tout went to the local pound and was never heard of again.

C’est Tout!

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CHAPTER 1

The growing importance of pets

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OVERVIEW

The notion that pets are becoming more important in our lives today is borne out by recent research, which shows that 75% of American dog owners view their animals as family members and more than 50% of cat owners feel the same. About 20% of pet owners have actually changed romantic relationships because of disputes over pets. Nearly 40% of pet owners carry pet pictures in their wallets and more than 30% have taken time off work because of sick pets. A majority of pet dogs and cats sleep indoors, most on their owner’s bed or on a blanket or pet bed. A recent survey revealed that more pet owners would rather be stranded on a desert island with their pets than their spouse.

Furthermore, lifestyles in many western countries are changing: more people are choosing to remain single or to live without human companionship. They acquire pets to become their friends and companions.

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I once decided not to date a guy because he wasn’t excited to meet my dog. I mean, this was like not wanting to meet my mother. – BONNIE SCHACTER, FOUNDER OF THE SINGLE PET OWNER’S SOCIETY SINGLES GROUP

Love me, love my dog. – JOHN HEYWOOD (149?-1580), ENGLISH PLAYWRIGHT

In Canada, a 2001 IPSOS-REID pet ownership study (Paws & Claws) found that:

"Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member.

This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.

Another indication of the growing status and importance of pets is the rise of pet-friendly travel outfitters. Instead of packing Fido off to a boarding kennel for a couple of weeks, more people are choosing to take him on vacation with them. One such company, Dog Paddling Adventures (www.dogpaddlingadventures.com) of Markham, Ontario, Canada, for example, offers cross-country skiing, hiking and canoeing expeditions for pets and their owners. Dog Paddling Adventures claims its business has quadrupled since it opened in 2000.

Or you could take your dog on a guided tour of Provence in France or Napa Valley in California through the Europaws division of California-based vacation packager Europeds www.europeds.com.

Of course, there have been pet-friendly motels and hotels for years, but today there are hotels that even provide room service for cats and dogs. And if you and your dog book into the Las Ventanas al Paraiso resort in Los Cabos, Mexico (www.lasventanas.com), Buster can look over some of the chef-prepared menus for doggie guests, while the two of you enjoy side-by-side massages.

Recently in California, a seven-year-old black Labrador retriever named Daisy enjoyed a two-week stay at the luxurious Paradise Ranch Country Club for Dogs in Sun Valley, California, complete with swimming pool and a bedroom with TV, for $45 a night. This came after she had served as a bridesmaid at her mistress’ wedding in a fetching collar wreathed in flowers. Daisy got the doggie country club treatment while the newlyweds honeymooned in Italy.

Traveling by air? Check to see if your airline gives frequent-flyer miles for animals. Some do.

And then there are the magazines – not just the ordinary pet magazines that expound the virtues of a particular type of pet, or a breed of cat or dog, but specialty publications such as Fido Friendly (www.fidofriendly.com), which bills itself as the travel magazine for you and your dog. It offers a complete guide to dog-friendly accommodations across the United States and Canada.

And then there is the fact that nearly one in five U.S. companies now allows pets at work, according to a survey by the American Pet Products Manufacturers Association. The survey also showed that a majority of those polled believe there are benefits to having pets at work – relieving stress, improving relationships with co-workers, making for a happier workforce and creating a happier work environment.

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