Leona Helmsley’s Will and Pet Trusts in Ohio

Leona Helmsley’s will appears to have spurred an increased interest in leaving money for one’s pet.

As previously reported on this blog, in Ohio, one can now leave money in trust for their pet (or pets) and be assured that such reserved funds will actually be applied to the care of one’s pet(s). Ohio’s new trust code (adopted just this year) specifically authorizes the creation of a trust to provide care of an animal:

5804.08 Trust to provide for care of animal.
(A) A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

(B) A person appointed in the terms of a trust or, if no person is so appointed, a person appointed by the court may enforce a trust authorized by this section. A person having an interest in the welfare of an animal that is provided care by a trust authorized by this section may request the court to appoint a person to enforce the trust or to remove a person appointed.

(C) The property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor if then living or to the settlor’s successors in interest.

Effective Date: 01-01-2007

The Louisiana Pet Lawyer Blog previously posted to an article written by an attorney here in my backyard, Julie Mills from Worthington, Ohio.

An excerpt of Julie Article:

A statutory trust for the care of a pet will care for one designated pet or several pets. If the settlor, or person who creates the trust, has a statutory trust prepared to care for all animals in the settlor’s care at the settlor’s death, the trust will care for any animals in gestation as well.

A trust for the care of a pet must be funded with an amount considered reasonable in light of what amount is needed to care for the animal or animals. Such an amount should be calculated by the settlor using factors such as estimated veterinary bills, food expenses, recreation costs (toys, dog parks, etc.), occasional boarding costs (plan financially for one or two weeks a year), life span (a dog’s general life expectancy is 15 years, while a parrot’s can be 80 years), and burial or cremation expenses (burying or cremating a cat is much different financially—and logistically—than burying or cremating a horse).

If a court determines that a trust’s funds are excessive and unreasonable, the court will distribute the excess to the settlor or settlor’s beneficiaries or heirs. This might create a conflict between beneficiaries or heirs, and the welfare of the pet. To avoid this result, do not grossly overfund the trust to lessen the chances of a beneficiary or heir challenging the trust. Another option would be to designate any excess funds to a charity. A good rule of thumb is to calculate the amount that would be required to board your pet for the remainder of its life and use that amount to fund the trust.

I have not yet had the opportunity to draft a trust of this kind and, while I can’t be sure how much of Ms. Mill’s statements regarding what a court would do are accurate given the youth of the statute, her advice is reasonable and sounds entirely prudent.

Professor Gary Beyer of the Wills, Trusts & Estates Prof Blog has written a very thorough 20 Question FAQ regarding pet trusts on his website that you should also check out:

    What is a “pet trust”?
    How does a pet trust work?
    What are the main types of pet trusts?
    Which type of pet trust is “better”?
    What if my state does not have a special law authorizing pet trusts?
    When is a pet trust created?
    Which is better – an inter vivos or testamentary pet trust?
    What does it mean to “fund” your pet trust?

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