The pet trust has earned wide acceptance despite its unique non-human and noncharitable nature and has been adopted relatively quickly compared to other novel types of trusts. This comment reviews the history and characteristics of pet trusts to determine why they have been so widely recognized and to explore how the growth in their use and acceptance may be predictive of the development of trusts in the future.
UMKC Law Review Summer, 2008
Comments
*1109 AMERICA GETS WHAT IT WANTS: PET TRUSTS AND A FUTURE FOR ITS COMPANION ANIMALS
Breahn Vokolek [FNa1]
Copyright (c) 2008 Curators of the University of Missouri; Breahn Vokolek (reprinted with permission)
I. Introduction
Trusts are usually used as a vehicle for leaving one's property to other people, often family members. [FN1] However, the vast coverage of Leona Helmsley leaving twelve million dollars to her white Maltese, Trouble, [FN2] has made many aware of a different type of trust instrument-the pet trust. The pet trust has earned wide acceptance despite its unique non-human and noncharitable nature and has been adopted relatively quickly compared to other novel types of trusts. This comment reviews the history and characteristics of pet trusts to determine why they have been so widely recognized and to explore how the growth in their use and acceptance may be predictive of the development of trusts in the future.
A. Emotional Bond
Possibly the most significant factor driving the development of pet trusts is the emotional connection between pets and their owners. Although the law generally views pets as property, many individuals with companion animals view them quite differently than their other possessions. [FN3] In fact, many people consider their pets as family members or children. [FN4] A 2005 study found that seventy-three percent of dog owners and sixty-five percent of cat owners “consider their companion animals to be akin to a child or other close family member.” [FN5]
The remarkably close relationship between pets and their owners, as opposed to other types of property, is most likely a result of the nature of animals as responsive living things. Dogs, for example, can greet you when you get home, sleep with you at night, or even go jogging with you. The same cannot be said for your house or car. Although the law technically considers companion animals to be property, there is clearly something unique about the relationship between pet and owner that does not exist among other types of property. As a direct result of this unique relationship, similar to that of a parent and child, more and more pet owners are concerned with the welfare of their animals beyond their death or incapacitation.
*1110 B. Societal Burden
According to a recent survey by the American Pet Product Manufacturers Association, it is estimated that sixty-three percent of American households own a pet. [FN6] The majority of the pet owners who wish to provide for their pets after death are not capable of leaving twelve million dollars like the infamous Helmsley, but are simply concerned with making sure the animals are cared for. [FN7] Unfortunately, “thousands of pets end up in shelters every year because their owners” did not make prior arrangements for their care. [FN8] The same situation is created when an animal's owner does make arrangements but those arrangements are unenforceable and not voluntarily carried out by the owner's living family members.
Although many pet owners assume that a member of their family will take care of their pets after they die, the family members often do not want responsibility for the pet. [FN9] The reality is that a significant number of the four to six million animals euthanized in the United States every year are pets left without care when their owners die. [FN10]
Some universities with veterinary schools have responded to this issue by “offering perpetual pet care programs that promise student care, including all necessary medical needs, for pets when the owner becomes disabled or dies.” [FN11] However, to avail oneself of the program an owner must make some type of donation to an “appropriate school-associated foundation.” [FN12] This Comment proposes that increased awareness and enforceability of pet trusts would alleviate these issues significantly.
C. Changing Social Values
Changing social values towards animals have also had an enormous effect on the present legal status of pet trusts in the United States. Only fifty years ago the typical pet was a mixed breed dog or stray cat that spent its days laying in the sun and feeding off of table scraps. [FN13] American pets have gone from being *1111 tolerated to being the family focus. In fact, some individuals admittedly prefer their animals to their children. [FN14]
Traditionally, under common law, “companion animals were not considered to be property because they were thought to be economically useless creatures kept solely for the personal enjoyment of their guardians.” [FN15] As a result of changing societal values towards pets, the current status of companion animals is that of property. [FN16] This at least provides owners an opportunity to be compensated with monetary damages for the loss or destruction of their animals. [FN17] Because the amount of recovery for loss of an animal is equal to the fair market value of the animal, this compensation is typically very low, and there is a new trend suggesting that companion animals should be valued more like companions and less like property. [FN18] In fact, “[s]everal theorists have suggested that some animals meet most criteria for personhood and are therefore deserving of basic human rights.” [FN19]
D. Legal Status
There has been a legislative trend recognizing the bond between people and companion animals. [FN20] This trend has appeared in lawsuits allowing greater damages for the loss of or injury to a pet and in proposed legislation concerning companion animals. [FN21] It is not necessarily hard to see how changed attitudes towards pets have influenced legislation when “over 100 million households have at least one indoor domestic [animal],” including over sixty-five million dogs and over seventy-seven million cats. [FN22] As the number of pets in America increases, so does the number of legal issues associated with pets. [FN23]
Although animals cannot physically bring an action in court, many laws directly or indirectly relate to animals and the unique emotional ties between pets and their owners. [FN24] Technically the law sees animals as property; however, many laws give animals a status that no other property enjoys. [FN25] This status is developed through animal protection statutes, state law, tort recovery and custody disputes.
*1112 The law recognizes the importance of animal protection in the enactment of federal statutes, such as the Endangered Species Act, Animal Welfare Act and Marine Mammal Protection Act. [FN26] These statutes provide protection for “animals by prohibiting conduct detrimental to their welfare or by mandating certain actions to assure their well-being.” [FN27] The Humane Care of Animals Act requires “owners of animals to provide them with the following: a sufficient quantity of good quality, wholesome food and water; adequate shelter and protection from the weather; veterinary care when needed to prevent suffering; and humane care and treatment.” [FN28]
State law also respects the welfare of animals through state anti-cruelty statutes and state laws “requiring proper care and treatment of domestic and farm animals.” [FN29] Anti-cruelty laws are unique in that “[t]here is no similar law that prohibits an owner of other types of property from harming that property.” [FN30] Animal activists are even pushing for the adoption of the Universal Declaration on Animal Welfare, which “creates an internationally recognized norm upon which legislators may rely in developing animal welfare law in the United States inclusive of farm animals.” [FN31]
Criminal statutes also impute a duty to treat animals humanely. [FN32] Similar to children and incompetent persons, when a person takes an animal into his or her care, that person assumes an obligation to provide the proper care and treatment for that animal. [FN33] The trend in criminalizing animal cruelty is further evidenced in the recently enacted Animal Fighting Prohibition Enforcement Act, which “now makes it a felony, instead of a misdemeanor, to transport animals across state lines to fight.” [FN34]
To some extent, tort law has also recognized the unique status of animals and, more particularly, the special relationship between a pet owner and pet by providing compensation for emotional distress and trauma associated with the death or injury of a pet. “The measure of damages for injury or death of a companion animal continues to evolve.” [FN35] In LaPorte v. Associated Independents, Inc., the Florida Supreme Court entitled a dog owner to “recover for mental suffering as an element of damages for the malicious killing of her *1113 dog.” [FN36] Likewise, in Campbell v. Animal Quarantine Station, the Hawaii Supreme Court “upheld an award of damages to a family for the emotional distress suffered when their [dog] died while being transported by a state agency.” [FN37]
Pet owners have also argued for the establishment of a separate cause of action for the loss of companionship. [FN38] “Loss of companionship is based on the concept of consortium, which arises out of the marriage relationship.” [FN39] Although courts have “uniformly refused to create such a cause of action” for pets, “some court have extended the concept of loss of companionship to include recovery based on such other relationships as parent and child.” [FN40] In Brousseau v. Rosenthal, a New York trial court extended this trend and ruled that it was appropriate to consider loss of companionship when awarding damages to an owner for the loss of her pet. [FN41] The court recognized the pain and trauma associated with the loss of a pet and took it into account when determining damages. [FN42] Following the Brousseau decision as an example, courts “have begun to extend the concept of loss of companionship to the companion animal context.” [FN43]
Tennessee was the first state to enact legislation “dealing with the wrongful death of or injury to companion animals,” and several states have followed. [FN44] Although Tennessee's T-Bo Act of 2000 permits a guardian of a companion animal to recover damages for the “loss of the reasonably expected society, companionship, love and affection of the pet” it narrowly defined “pet” to include only dogs and cats. [FN45] Nevertheless, this Tennessee legislation provided a basis for an award of noneconomic damages in the special relationships shared by human owners and their companion animals. [FN46] Other proposed legislation has even recognized the concept that “companion dogs and cats often are treated as members of a family.” [FN47]
Because of the strong bond between humans and animals, it is understandable that animals have also increasingly been the subject of custody battles. [FN48] Many pet owners view their pets as children and themselves as their pets' parents, especially if the pet owner does not have other human children. This renders it virtually impossible for such pet owners to treat their animals as *1114 divisible property in divorce. [FN49] It has been suggested that courts should adopt better methods for dealing with the custody and visitation of pets to maintain equity in the judicial process. [FN50] Dealing with these problems has largely been left “in the hands of the warring parties.” [FN51]
E. Economic Market
The legal field is not alone in responding to America's changing view on pets. Many companies have geared marketing and product choice around the idea that people view their pets as family members. “The pet industry has become one of the fastest growing businesses in America.” [FN52] Large chain stores such as Petsmart and Petco dominate the market but many smaller independent stores are still managing to do a good business. [FN53] The American Pet Product Manufacturers Association has estimated that in 2007, Americans spent around 41.2 billion dollars on pet products. [FN54] This number is up from the 38.5 billion dollars spent in 2006 and the 36.3 billion dollars spent in 2005. [FN55]
Americans absolutely love their pets, and the concept of pets as children has had a huge effect on the pet market. Until recently, it was practically unheard of that pets would have extensive wardrobes, attend day care, and even have lavish birthday parties thrown for them. The idea that humans are superior to animals or that animals exist for the benefit of humans has lessened and, instead, more and more humans are attributing human characteristics to animals. [FN56]
With the increasing amount of money being spent on pets every year, it is not surprising that pet owners desire to guarantee a particular lifestyle for their pets in the future. The relationship between pets and money has obviously changed. If Americans are spending such a large amount of money on their pets while they are living, it is logical that they would do the same in preparing for their death. Consequently, whether the spending occurs during their lifetime or upon their death through a pet trust, it is often the pet owner's other family members who lose out on receiving that money.
F. Alternatives Fall Short
AFN58] The unfortunate reality of this is that pets are often overlooked in the confusion associated with a person's unexpected sickness or death. [FN59] If there are any legal disputes over any of the property being probated, there can be additional delays in the distribution of the property, which includes companion animals. [FN60] As living beings, pets, unlike other property, cannot be left in storage while the details of distribution are resolved. [FN61]
One alternative to the pet trust involves the “outright gift of the animal to a pet retirement home.” [FN62] This alternative is typically only available for cats and dogs, and should be researched extensively by the pet owner to “understand the conditions under which it will accept [pets].” [FN63] A pet owner should look for a pet retirement home that has been in existence for a substantial period of time and should be aware that for-profit pet retirement homes can go out of business if not sufficiently profitable. [FN64] Another pitfall with this alternative is the likelihood that the pet will not receive the same level of human interaction as it did under the owner's care. [FN65]
Although one can attempt to create a moral obligation by making a gift to a caretaking fund that is contingent on the caretaker using the funds for the benefit and care of the animals, it might be difficult to enforce. [FN66] Once the estate has actually been probated and the property distributed, additional problems arise with exercising “continuing control or accountability for the care of your pets.” [FN67] Many of these potential problems with providing for pets in wills are resolved with the pet trust. “Unlike a will, a trust can provide for your pet immediately and can apply not only if you die, but also in the event of your incapacity.” [FN68]
*1116 II. Overview of Trusts
A. What is a trust?
The significance of the pet trust, with its nontraditional characteristics, is best understood in the context of the traditional trust and the basic rules associated with trusts in general. Without this requisite background information, it is hard to appreciate the phenomenon that the pet trust has become.
A “trust” is a “fiduciary relationship in which rights to property are divided between a trustee, who holds legal title, and a beneficiary, who holds equitable title.” [FN69] The Restatement defines a trust as follows:
A trust . . . when not qualified by the word “resulting” or “constructive,” is a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee. [FN70]
In simplified terms, a trust exists where legal title to property is held by one or more persons who are under a legal obligation to manage such property only for the benefit of others. [FN71] The trust, therefore, involves three main parties: the settlor (the person who establishes the trust), the trustee (the person or entity who holds legal title to the trust property), and the beneficiary (the person for whose benefit the trust is established). [FN72]
There are four basic elements to establishing a valid trust: (1) intent by the settlor to establish a trust, (2) identification of the property, (3) designation of parties, and (4) articulation of trust purpose. [FN73] Intent involves the settlor having “objectively manifested definite and specific intent to establish a trust with regard to property.” [FN74] Identification of property requires the settlor to have an existing interest in the property and for the property to be capable of being owned and identified. [FN75] In designating the parties, the beneficiaries “must either be identified, or be reasonably ascertainable within a specified period of time.” [FN76] A beneficiary “must be a person who would have the capacity to take and hold title *1117 to property.” [FN77] In this context, “person” includes “corporations, political subdivisions, some unincorporated associations, and other trusts.” [FN78] Lastly, the trust purpose can “be anything which is not illegal or contrary to public policy.” [FN79]
Usually a trust is established through a written legal document, and often involves a “Trust Agreement” or “Deed of Settlement,” which explains “how the trust's capital and income are to be held, managed and distributed.” [FN80] Depending on the jurisdiction in which it is formed, the trust may also need to be registered with a governmental agency. [FN81] The modern trust is very flexible and can be customized to accommodate the desires of the settlor. [FN82]
B. History of the Trust
The United States' trust concept developed from English common law in the Middle Ages. [FN83] English common law trusts were derived from the “use” system in place at that time. [FN84] The use concept solved a problem facing English clergymen at that time. [FN85] The clergymen had a difficult time meeting their financial needs because their religious beliefs prohibited them from owning real property. [FN86] The concept of ownership was split in two distinct realms: the right to hold title to the property and the right to use the property. [FN87] This allowed the clergymen to enjoy the use of the property without violating their religious beliefs against owning property. [FN88]
The trust concept developed from this use system and was implemented to “assuage the burden of heavy feudal taxes on property transfers, including inheritance.” [FN89] The earliest versions of trusts allowed legal title to assets to be passed to a trustee, who would then administer the assets on behalf of the beneficiaries, who were generally the testator's spouse and children. [FN90] Even the early versions of the trust channeled the concept of allowing the reconfiguration of ownership to avoid the consequences of actual legal ownership. [FN91]
Trusts were legalized in the United States in 1822, when Farmer's Fire Insurance and Loan Company of New York “became the first institution *1118 chartered in the trust business” and institutions offering trust services continued to rise through the early 1900s. [FN92] As a result of the Great Depression, American attitudes toward saving and investing and, consequently, toward trusts significantly changed. [FN93]
In the 1940s, one type of trust, the employee benefit trust, became so popular that Congress eventually enacted the Employee Retirement Income Security Act of 1974, (“ERISA”) to “define the responsibilities of trustees managing such funds.” [FN94] An employee benefit trust was a pension plan that allowed an employer to deduct contributions from corporate income. [FN95] ERISA addressed the “public concern that funds of private pension plans were being mismanaged and abused.” [FN96] The employee benefit trust was an early example of how American popularity can influence the development of a trust instrument.
After the Depression, investments in individual and charitable trusts increased, as wealthy individuals were using trusts as a way to transfer wealth. [FN97] Trusts were being utilized in this way primarily due to “[i]ncreases in tax benefits that allowed trustors to avoid estate and gift taxes. . . .” [FN98] In the mid-1980s, a strong economy generated an increase in money contributed to trusts, particularly to charitable trust funds. [FN99] Assets under trustee management continued to increase through the mid-1980s until faced with a few setbacks, including the Tax Reform Act of 1986, which “created confusion for trustees.” [FN100] Through the late 1980s and early 1990s, the use of trusts slowed. [FN101]
Until recently, trusts in the United States were primarily used by wealthy families for privacy purposes. [FN102] Today, however, those with equity in their homes or savings for retirement or college are using trusts “as an essential ingredient in their asset protection and estate plans.” [FN103] Over time, and in relation to changes in the federal tax law, new trusts have developed, including “the Clifford trust, the charitable remainder trust, the minor's trust, the grantor retained income and annuity trusts, [and] the qualified person residence trust. . . *1119 .” [FN104] In recent years America has also seen the development of the “purpose trust,” which has “require[d] some rethinking of the basic elements of a trust.” [FN105]
C. Purpose Trusts
Although most trusts move property from one person to another, typically benefiting the members of the decedent's immediate family, some testators chose to assign their funds for the accomplishment of some purpose or cause. [FN106] A purpose trust is basically “a trust established for a purpose rather than for specified beneficiaries.” [FN107] Because pet trusts are a form of a purpose trust, a closer look at the characteristics and development of purpose trusts is crucial to understanding the existence and adoption of pet trusts.
A purpose trust does not meet traditional trust requirements because it “has no direct individual beneficiaries, even though there may be individuals who happen to benefit from the trust carrying out its purpose or beneficiaries who may take when the purpose is satisfied or the trust terminates for some other reason.” [FN108] Traditionally, lawmakers have determined the rules applicable to trusts for purposes based on the type of purpose the testator intended. [FN109] The three main types of purposes are: (1) those for charitable purposes, which serve the public interest; (2) those for noncharitable purposes, accomplishing merely private ends; and (3) those for purposes deemed to violate public policy. [FN110]
Understandably, trusts for purposes contrary to public policy are not enforceable or even permissible for a short period of time. [FN111] On the other hand, “[t]rusts for charitable purposes are effective and fully enforceable by the state attorney general. . . . [and] can persist for as long as the testator wishes. . . .” [FN112] Between these two on the spectrum of enforceability are trusts for noncharitable purposes, which are unenforceable by the attorney general because they do not “affirmatively benefit society.” [FN113] Noncharitable purpose trusts can, however, be carried out by the trustee. [FN114] Because the trustee has the power but not the legal obligation to carry out a trust for noncharitable purposes, trusts for noncharitable purposes are referred to as “honorary trusts.” [FN115] An honorary trust is generally *1120 thought of as a trust that “does not have a beneficiary who can enforce its provisions.” [FN116]
In accordance with the basic elements of a trust, a noncharitable purpose trust is unenforceable under common law for a number of reasons. [FN117] First, contrary to trusts for charitable purposes, trusts for noncharitable purposes are limited in duration by the rule against perpetuities. [FN118] These trusts violate the rule against perpetuities because “there is no measuring of human life.” [FN119] Further, trusts for noncharitable purposes are unenforceable because there is no ascertainable beneficiary to enforce the trust. [FN120] Unlike trusts for charitable purposes, the state attorney general does not have the power to enforce a trust for a noncharitable purpose. [FN121]
Noncharitable purpose trusts can have a social or private purpose. A trust for a social purpose involves an undefined group enjoying the benefit of noncharitable bequest even though the group members were not specified or defined in the trust. [FN122] The recipients of a trust for a private purpose, however, do not comprise an undefined group, but “the deceased herself is the only recipient.” [FN123] Pet trusts and cemetery trusts are most commonly identified with serving a private purpose. [FN124] Private purpose trusts are known to provide care for the property to which persons often “form their closest attachments: homes, collections, and pet animals.” [FN125]
Offshore jurisdictions such as the British Virgin Islands, Bermuda, and the Cayman Islands have recognized purpose trusts through formal legislation. [FN126] Some states in the United States have also adopted purpose trust law, but have done so in a much more limited way. [FN127] It has been noted that the “thrust in the United States to adopt purpose trust legislation appears to be largely related to and motivated by the public's desire to be able to establish valid trusts for their pets, although ‘honorary’ trusts . . . are usually allowed on the same basis.” [FN128] There are also a few states, including Pennsylvania, that allow some form of purpose trust through case law. [FN129]
*1121 IV. Pet Trusts
A. History of Pet Trusts
Pet trusts, which are a type of a noncharitable purpose trust, allow people to provide for their companion animals' future in the event of their death or incapacitation. [FN130] They are seemingly driven by the desire of pet owners to ensure that their pets experience the same quality of life they received while in the owner's care. [FN131] A pet trust allows an owner to designate a specific amount of money for his pets' care and to name a trustee to carry out his wishes for the animal. [FN132]
There are two forms of pet trusts: common law and statutory. Under the common law's basic trust principles, trusts established for the care of a specific animal are technically invalid. [FN133] This is largely because “[o]ne of the legal requirements of a trust is that it specify a beneficiary which can be identified in definite and certain terms.” [FN134] The beneficiary must be a “human being, corporation, or the like” so that beneficiary is able to enforce the trust. [FN135] This does not include animals, as an animal beneficiary obviously cannot force a trustee to administer the trust as intended.
To help in avoiding some of these issues, a pet owner can designate a human caregiver or organization to be “named as the beneficiary of a trust and given specific duties and responsibilities for the care of a pet.” [FN136] The pet should also be identified in a way that will “permit third parties to identify [it] after the settlor's death.” [FN137] A pet owner should describe the pet in enough detail that the beneficiary cannot substitute other animals. [FN138]
Along with the lack of a beneficiary, the common law has a larger problem with the rule against perpetuities. [FN139] In case law regarding pet trusts, “the sole issue in each case was whether an animal can be considered a measuring life under the rule against perpetuities.” [FN140] In order for a trust to be valid, “the disposition of the trust property must be settled by twenty-one years after the death of the measuring life, the life of the appropriate person who was alive at the *1122 time the trust was created.” [FN141] A pet trust violates this rule because “[o]nly the pet's death would trigger the passing of the unused portion of the trust to the remainder beneficiaries.” [FN142] The inclusion of a perpetuities savings clause in a trust and clearly identifying when and how the trust will terminate can help to avoid violating the rule against perpetuities and having the trust declared void. [FN143] However, they will not enable the trust to continue as a valid trust for the benefit of a pet. [FN144]
English common law courts have “recognized testamentary provisions in favor of specific animals for well over a century.” [FN145] However, the first case to address bequests to animals, Attorney-General v. Whorwood, did not reflect this approach. [FN146] In this 1750 case, “the court stated in dicta that courts should not validate gifts that provide ‘odd’ or ‘whimsical’ gifts.” [FN147] In 1842, almost a hundred years later, another English court addressed a gift involving animals. [FN148] In Pettingall v. Pettingall, an owner set out a sum of money with specific instructions for the care of his black mare. [FN149] Because all the parties assumed the gift valid, the court ultimately addressed other issues. [FN150] Again in Mitford v. Reynolds, the court avoided explicitly addressing the validity of a gift for the benefit of animals. [FN151]
It was not until 1888 that an English court directly addressed the validity of a trust providing for the maintenance of specific animals. [FN152] In re Dean involved a pet owner directing the trustees to pay a certain amount of money per year for the maintenance of the owner's horses and dogs. [FN153] The trust specifically stated that it was “to continue for the animals' lifetime, but in no event longer than fifty years.” [FN154] In assessing the validity of the trust, the court first addressed the fact that the benefits of the trust were limited in scope to the owner's animals and not animals generally. [FN155] Because of its limited scope, the court determined that the owner had not made a charitable gift. [FN156] The court also recognized that the gift was not made to the trustees personally, and, therefore, for the gift to be valid it had to constitute an honorary trust. [FN157] Ultimately, the court held that the trust was *1123 not “obnoxious to the law” but warned that it could not “last for too long a period.” [FN158]
Later English cases continued a “common sense determination” that pet trusts do not contravene public policy. “The courts and commentators of other common law nations adopted similar approaches.” [FN159] In the Irish case of In re Estate of Kelly, [FN160] a pet owner created a trust providing for the care of his dogs and as part of the trust, included a provision for the passage of the remainder of the estate. [FN161] The court was concerned about the “remoteness of vesting of this remainder interest” and laid out the rule that the measuring lives for the rule against perpetuities must be human. [FN162] The court refused to recognize the fact that it may be impossible for a pet to outlive its owner by more than twenty-one years, and invalidated the remainder gift. [FN163] Again, “[t]he court did not address the problem of there being no beneficiary to enforce this trust, because the trustees were willing to carry out the pet owner's intent.” [FN164]
The very first American case “to address the validity of a bequest in trust for the benefit of a pet animal” occurred in 1923. [FN165] In Willet v. Willet [FN166] the Kentucky Court of Appeals held that “a testamentary gift for the care of a specific animal was a ‘humane purpose’ and therefore effective under a Kentucky statute that validated any gift that had a humane purpose.” [FN167] Since Willet, courts have varied in enforcement. Some courts have held testamentary gifts invalid, some have allowed the trust to be voluntarily carried out by the transferee, and some have enforced the trust. [FN168] During late twentieth century the “tide towards effectuating a pet owner's desire to care for the pet after the owner's death beg[a]n to rise again.” [FN169]
The 1935 Restatement of Trusts and the 1957 Restatement (Second) of Trusts neither invalidated pet trusts nor enforced them. [FN170] Instead, the Restatement (Second) of Trusts § 124 recognized pet trusts but declined “to provide any enforcement mechanism.” [FN171] Although the Restatement does not specifically address pet trusts, it does address transfers that are for a “specific noncharitable purpose” and that do not “designate a definite or definitely ascertainable beneficiary.” [FN172] It provides that these transfers are unenforceable, *1124 meaning the trustee has the power but not the duty to carry out the trust. [FN173] The Restatement also places two limitations on the trustee's power to enforce the trust: (1) that the trustee cannot use the property to benefit an animal for “a time beyond the period of the rule against perpetuities,” and (2) that the trustee cannot use the property “if the court deems the purpose capricious.” [FN174]
The Restatement provides a better situation for pet owners than the judicial holdings that trusts for the benefit of pets are ineffective, but it still stands for the position that these trusts are unenforceable, leaving the pet owner unable to “legally force the transferee to use the property for the pet.” [FN175] Ultimately, it is up to the pet owner to properly select a trustee who will carry out his or her wishes. [FN176]
Because of judicial disapproval, some courts have participated in frustrating pet owners' intent to provide care for their pet after their own death. [FN177] In the 1968 case Estate of Russell, [FN178] one of the most influential cases on the validity of a bequest to an animal in a will, the California Supreme Court invalidated a testator's gift of half of everything she owned to her dog, Roxy Russell. [FN179] Ultimately behind the court's decision was the legal view that animals are property and that “it is impossible to leave property to property.” [FN180]
Beginning in the late 1970s and early 80s, some courts began recognizing pet trusts as “honorary trusts.” [FN181] This was soon followed with the establishment of legislation. [FN182] Many states found a way around common law enforceability problems through the creation of the statutory pet trust. [FN183] A statutory pet trust involves a basic plan in which the settlor does not have to make as many decisions regarding the terms of the trust. [FN184] Some of the standard provisions of a statutory pet trust include that the court may “appoint a successor caretaker in the event the settlor has not designated one.” [FN185] There is generally also a provision that “no portion of the pet trust funds may be used for any purpose other than care of the pet.” [FN186]
The concept of the statutory pet trust materialized in the United States through the amendment of the Uniform Probate Code (“UPC”) in 1990 to include Section 2-907, which recognized honorary trusts for pets. [FN187] Under the UPC the *1125 trust had to “end either twenty-one years after its creation, or when no living animal was covered by the trust, whichever came first.” [FN188] These honorary trusts did not necessarily assure that one's pets would be provided for after death, as the decision to carry out the trust was within the trustee's discretion. [FN189]
In 1993, UPC Section 2-907 was amended “to reconcile the code with the common law rule against perpetuities and the troublesome issue of enforceability.” [FN190] The twenty-one year limit was put in brackets, which indicated that an enacting state could select a different time period. [FN191] This change allowed those animals with lifespans exceeding twenty-one years (such as birds, reptiles and horses) to be covered by the trust provisions. [FN192] The 1993 amendments also provided for the exclusion of offspring from coverage under the trust provisions to prevent resulting perpetual trusts. [FN193] The amendments empowered the courts to appoint someone to enforce the trust in the event the owner failed to name someone. [FN194] Lastly, the amended UPC allowed the court to reduce the amount of money or property transferred into the trust if it determined that it substantially exceeds “the amount required for intended use.” [FN195] Alaska, Arizona, Colorado, Hawaii, Illinois, Michigan, Montana, North Carolina, Texas, Rhode Island and Utah have all enacted Section 2-907 of the 1993 UPC. [FN196]
UPC Section 2-907 and its amendments perpetuated the move toward the Uniform Trust Code (“UTC”) in 2000. [FN197] The UTC eliminated the “optional” element of the UPC by legalizing and making honorary trusts for pets enforceable. [FN198] States including Arkansas, Florida, Kansas, Maine, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Virginia and Wyoming, and the District of Columbia have enacted Section 408 of the UTC. [FN199] Section 408 provides that “a pet trust may be enforced by a person appointed in the terms of the trust, or if no such person is appointed, by a person appointed by the court.” [FN200] For those states that have adopted Section 408 , pet trusts are no longer unenforceable honorary trusts. [FN201] In fact, “trusts for humans, animals, and charities are subject to the same rules of interpretation.” [FN202]
*1126 B. Why Do Some States Not Enforce Pet Trusts?
Although thirty-eight states and the District of Columbia allow pet owners to leave money for the care of their pets, no legislation for pet trusts exists in the remaining states. [FN203] In Minnesota, there have been three attempts in the past five years to get the Uniform Trust Code provision “allowing for pet trusts passed in the state Legislature,” but it has yet to be passed. [FN204] It has been suggested that pet trusts have not been adopted in Minnesota because of a fear that “people will use the trusts to shelter money and claim more medical assistance.” [FN205]
Without the recognition of pet trusts in Minnesota, pet owners have the option of setting up arrangements with local shelters that care for pets after the owner dies. [FN206] Essentially, the pet owner specifies in his or her will that the pet should go to a specific organization, and the owner then designates some amount of money for the organization to care for the pet. Although this shelter option seems to superficially address the need for pet trusts, it probably provides little comfort to those pet ownerswho view their pets as children. It may be that Minnesota is just “behind the curve” and will eventually join the majority of the United States in adopting some form of pet trust statutes. [FN207]
Just this year the Florida Legislature revised their laws to adopt Section 408 of the UTC, allowing owners to leave their estates to their pets, provided that there is a human trustee named. [FN208] Alabama, North Dakota and Ohio are among the other states that have adopted pet trust statutes effective in 2007. [FN209] Thus, only twelve states remain that have not adopted some form of pet trust legislation. [FN210] However, Connecticut, Massachusetts, Oklahoma and West Virginia all have legislation pending. [FN211] The issues holding states back from adopting pet trusts are those same issues that make pet trusts unenforceable under common law (i.e., no ascertainable human beneficiary and violation of the rule against perpetuities). [FN212] As more states continue to work through these issues through the adoption of Section 408 , the rest of the country will likely follow.
*1127 C. Pet Trusts Today
Today, a pet trust can be sixty pages in length and cost thousands in legal fees, [FN213] or it could involve merely adding a few lines to the end of a person's will for as little as $100. [FN214] If the pet trust is part of a will, it can be funded by money set aside from the owner's estate to cover costs. [FN215] Another alternative is to fund the trust by purchasing a life insurance policy, which names the trustee as the beneficiary. [FN216]
Although the amount of property left to pets can coincide with “the animal's age, condition, and species,” this amount often varies in relation to wealth. [FN217] Some wealthier Americans are setting “aside tens of thousands of dollars to allow their pets to continue to live comfortably in their past homes with a professional caretaker, rather than be shipped off to a relative.” [FN218] According to newspaper reports, actress Betty White is planning to leave all of her five million dollar estate to her pets. [FN219] Many are also aware of Leona Helmsley's leaving twelve million dollars in a trust for her white Maltese, while excluding two of her grandchildren from receiving any inheritance. [FN220] Others are leaving just enough money for future veterinary bills or to compensate a new owner for taking on the responsibility of a new pet. [FN221] Experts say that owners who include their pets in their will typically leave behind about $10,000 to $35,000. [FN222]
Many pet trusts “designate both a trustee to manage the money and a caretaker to handle the day-to-day care of the pet.” [FN223] Having two parties involved helps to ensure the pet receives the appropriate level of care, because there is someone making sure the caregiver is following through with his or her obligations. [FN224] Generally, the pet owner should name a remainder beneficiary to receive the residual property when the pet passes away or the trust terminates. [FN225] Upon the death of the beneficiary pet, the remaining money often goes to the caregiver or to a designated charity. [FN226] Even if a charity is named as the remainder beneficiary of a pet trust, however, no charitable deduction is permitted. [FN227]
*1128 It has been suggested that at a minimum, the terms of the trust for the distribution of funds to the caretaker should provide for “expenditures for food, shelter, veterinary care, medication, boarding or pet-sitting, and costs for the disposition of the pet's remains.” [FN228] Any specific preferences about the disposal of the pet's remains after its death or directions and circumstances for euthanizing the pet should also be expressly addressed. Some settlors even go so far as to specify the animal's favorite food, frequency of veterinary appointments, amount of exercise, usual habits and health conditions. [FN229] These specifics should be included only to the extent they are “not unreasonable in light of the amount of caretaking funds available.” [FN230]
Today's pet trusts are also not immune from those tax issues common to most estate planning provisions. “Any amount passing to a pet trust by reason of the settlor's death will generally be included in the gross taxable estate.” [FN231] This is true even if the pet trust would otherwise not qualify as a grantor trust. [FN232] Revenue Ruling 78-105 requires that “no portion of the amount passing to a valid trust for the lifetime benefit of a pet qualifies for the charitable estate tax deduction, even if the remainder beneficiary is a qualifying charity.” [FN233]
Another tax issue arises with the income taxation of a pet trust, because an animal is not a beneficiary recognized by the IRS and, thus, cannot be taxed. [FN234] The IRS has dealt with this problem in Revenue Ruling 76-4876, which held “that an enforceable pet trust established under a state statute would be taxed on all of its income, regardless of any distributions made for the benefit of the pet beneficiary.” [FN235] The result of Revenue Ruling 76-4876 was that the pet trust is “taxed as a complex trust that has not made any distributions.” [FN236]
D. Comparison of the History of Pet Trusts with Trusts in General
With the changing views and attitudes towards companion animals, pet trusts are becoming increasingly popular in the United States. It has been estimated that between twelve and twenty-seven percent of pet owners include their pets in their estate planning. [FN237] The speed at which pet trusts have been accepted is exemplified by the fact that only twenty-seven states recognized pet *1129 trusts in May of 2005, while thirty-eight states and the District of Columbia recognize pet trusts today. [FN238]
The development of pet trusts has been extraordinarily fast when compared to trusts in general. The United States' traditional trust concept, including the notion that the beneficiary of a trust must be a person, originated in the Middle Ages, and essentially remained the same until 2000 when the Uniform Trust Code validated bequests for the benefit of companion animals. Although a few English cases in the early 1800s involved testamentary dispositions in favor of animals, the pet trust concept was not directly addressed until 1888, not legally possible until 1990, and not made enforceable until 2000. It is somewhat of a phenomenon that trust law essentially remained unchanged for so long and now, within the past ten years, thirty-eight states have enacted laws that allow their residents to set up pet trusts.
VI. Application of Pet Trust Patterns as Predictive for Future
The driving forces behind the creation and adoption of pet trusts have been the “philosophical and cultural change[s]” [FN239] in attitudes towards pets as more than property, the prevention of a societal burden, and the increased consumer market for pets. In particular, the combination of these external factors with the characteristics of the pet trust has led to its creation and quick adoption. Analyzing the unique qualities of the pet trust may be helpful in predicting the type of trusts that will develop in the future.
One important and unique characteristic of the pet trust is that it is a noncharitable purpose trust. Its purpose does not serve the public, but it also does not violate public policy. In other words, it neither helps nor hurts society. This characteristic makes the pet trust unique, but it has also frustrated its enforceability under common law. A noncharitable purpose trust, also known as an honorary trust, does not have a beneficiary that is able to enforce it, and it is limited in duration by the rule against perpetuities. This has made the pet trust enforceable only under state statute. For an exception like the pet trust to be carved out for other trusts in the future, such trusts will most likely also need to avoid violating public policy and be able to have enforceability issues resolved through state statutes.
Another characteristic of the pet trust that has contributed to its wide acceptance is its ability to satisfy a growing need in the market. The increasing desire of American's to provide for their pets after their own death is widely shared and deeply emotional. This has resulted in people from across the country uniting to push legislators towards meeting their needs for pet trusts. For another *1130 trust to follow the path of the pet trust's quick adoption, it would need to share this ability to meet a nationwide need.
VII. Conclusion
The trust has become “essential in creating various strategies for accomplishing asset protection, estate planning, and privacy benefits.” [FN240] As pets in America become more like family members and less like actual animals, it is not surprising that the pet trust has become so widely accepted and desired. The pet trust's validation in a majority of the United States, despite its unique and nontraditional characteristics, proves that if Americans share a wide spread desire that is not being satisfied, such as the desire to provide for their animals beyond death, they will make a way to get what they want; with the pet trust, this has been done through statute. [FN241]
[FNa1] . J.D. Candidate, 2008, University of Missouri-Kansas City School of Law.
[FN1] . See Adam J. Hirsch, Bequests for Purposes: A Unified Theory, 56 Wash. & Lee L. Rev. 33, 33 (1999).
[FN2] . Sandra Block, Pet Lovers Like Helmsley Plan Ahead: In Dog We Trust, USA Today, Sept. 4, 2007, at 9A.
[FN3] . Bambi Glenn, Estate Planning for Your Pets, 40 Md. B.J. 23, 24 (Sept./Oct. 2007).
[FN4] . See Tim Grant, State Trust Act Puts a Bite Into Pet Care, Pitt. Post-Gazette, Oct. 25, 2007, at C2.
[FN5] . Darin I. Zenov & Barbara Ruiz-Gonzalez, Trusts for Pets, 79 Fla. B.J. 22, 22 (2005).
[FN6] . Amy Carlson Gustafson, A Will and a Way: Trust Funds for Pets Are Not Allowed in Minnesota, but There Are Other Options for Owners Who Want to Provide Care for Their Animals, St. Paul Pioneer Press, Oct. 9, 2007, at E1.
[FN7] . Id.
[FN8] . Sandra Block, How to Assure Your Pet's Care After Your Death; If You Don't Think Ahead, Furry Friend Could End Up in a Shelter, Chi. Sun-Times, Sept. 10, 2007, at 50.
[FN9] . Block, supra note 2, at 9A.
[FN10] . See David B. Caruso, Helmsley's $12 Million Bequest to Dog is Far From Unique, Intelligencer, Aug. 31, 2007, at A4. See also Judy Richter, Owners Encouraged to Care for Pets' Future in Estate Planning, Dec. 15, 2007, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/ c/a/2007/12/15/HOKMT9P2P.DTL.
[FN11] . Janet L. Grove, Estate Planning for Twenty-First Century Families, 91 Ill. B.J. 631, 634 (2003).
[FN12] . Id.
[FN13] . Katharine Coxwell & Wanda D. Devereaux, Paws Laws or How Nigel and Miss Muffy Came to be Rich, 67 Ala. Law. 433, 433 (2006).
[FN14] . Stephanie B. Casteel, Estate Planning for Pets, 21 Prob. & Prop. 8, 9 (2007).
[FN15] . Vasiliki Agorianitis, Being Daphne's Mom: An Argument for Valuing Companion Animals as Companions, 39 J. Marshall L. Rev. 1453, 1454-55 (2006).
[FN16] . Id.
[FN17] . Id.
[FN18] . Id at 1454.
[FN19] . Jens David Ohlin, Note, Is There Concept of the Person Necessary for Human Rights?, 105 Colum. L. Rev. 209, 220 (2005). See also Gary L. Francione, Reflections on Animals, Property, and the Law and Rain Without Thunder, 70 Law & Contemp. Probs. 9 (2007).
[FN20] . Glenn, supra note 3, at 24.
[FN21] . Id.
[FN22] . Janet Stidman Eveleth, What is Animal Law?, 40 Md. B.J. 4, 4 (2007).
[FN23] . Id.
[FN24] . Maureen L. Rowland, Legal Standing of Animals Today, 40 Md. B.J. 10, 11 (2007).
[FN25] . Id.
[FN26] . Id at 12.
[FN27] . Id.
[FN28] . Helen W. Gunnarsson, Animal Law Comes Into Its Own, 95 Ill. B.J. 412, 441-42 (2007).
[FN29] . Rowland, supra note 24, at 12.
[FN30] . David Favre, Integrating Animal Interests Into Our Legal System, 10 Animal L. 87, 92-93 (2004).
[FN31] . Amy B. Draeger, More Than Property: An Argument for Adoption of the Universal Declaration on Animal Welfare, 12 Drake J. Agric. L. 277, 302 (2007).
[FN32] . Rowland, supra note 24, at 12.
[FN33] . Id.
[FN34] . James Ragland, Animal Law Deserved Legislators' Support, Dallas Morning News, Sept. 1, 2007, at 1B.
[FN35] . Gunnarsson, supra note 28, at 442..
[FN36] . Rowland, supra note 24, at 16. See also La Porte v. Assoc. Indeps., Inc., 163 So. 2d 267 (Fla. 1964).
[FN37] . Id.
[FN38] . Agorianitis, supra note 15, at 1459.
[FN39] . Id.
[FN40] . Id.
[FN41] . Id. See also Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. Civ. Ct. 1980).
[FN42] . Id. at 1460.
[FN43] . Id.
[FN44] . Id. at 1461.
[FN45] . Id.
[FN46] . Id.
[FN47] . Id. at 1467.
[FN48] . Rowland, supra note 24, at 16.
[FN49] . Id.
[FN50] . Id.
[FN51] . Id.
[FN52] . Coxwell & Devereaux, supra note 13, at 437.
[FN53] . Id.
[FN54] . American Pet Products Manufacturers, Inc., Industry Statistics and Trends, http://www.appma.org/press_industrytrends.asp (last visited Mar. 24, 2008).
[FN55] . Id.
[FN56] . See Rowland, supra note 24, at 11.
[FN57] . Glenn, supra note 3, at 25.
[FN58] . Id.
[FN59] . Id.
[FN60] . Id.
[FN61] . Id.
[FN62] . Casteel, supra note 14, at 9.
[FN63] . Id.
[FN64] . Id.
[FN65] . Id.
[FN66] . Glenn, supra note 3, at 25.
[FN67] . Id.
[FN68] . Id. at 26.
[FN69] . Keith L. Hatton, Trusts: History, Mechanics & Applications, http:// www.hatton.ca/trusts.htm (last visited Mar. 24, 2008).
[FN70] . Restatement (Third) of Trusts § 2 (2003).
[FN71] . From the Heart Church Ministries, Inc. v. African Methodist Episcopal Zion Church, 803 A.2d 548, 566 (Md. 2002).
[FN72] . Hatton, supra note 69.
[FN73] . Id. See also James. H. Brun, Drafting Trust Instruments Under the Ohio Trust Code, 17 Ohio Prob. L.J. 198 (2007).
[FN74] . Hatton, supra note 69.
[FN75] . Id.
[FN76] . Id.
[FN77] . Michael A. Ogline, Trusts for the Care of Animals: Estate Planning Goes to the Dogs, 18 Ohio Prob. L.J. 9, 9 (2007).
[FN78] . Id.
[FN79] . Hatton, supra note 69.
[FN80] . Id.
[FN81] . Id.
[FN82] . Id.
[FN83] . Id.
[FN84] . Id.
[FN85] . Id.
[FN86] . Id.
[FN87] . Id.
[FN88] . Id.
[FN89] . Id.
[FN90] . Id.
[FN91] . Id.
[FN92] . History of Trusts, http:// www.referenceforbusiness.com/encyclopedia/Thir-Val/Trusts-and-Trustees.html (last visited Mar. 24, 2008).
[FN93] . Id.
[FN94] . Id.
[FN95] . U.S. Department of Labor, History of EBSA and ERISA, http:// www.dol.gov/ebsa/aboutebsa/history.html (last visited Mar. 24, 2008).
[FN96] . Id.
[FN97] . History of Trusts, supra note 92.
[FN98] . Id.
[FN99] . Id.
[FN100] . Id.
[FN101] . Id.
[FN102] . The Asset Law Protection Law Center, Types of Trusts: Overview, http://www.rjmintz.com/appch7.html (last visited Mar. 24, 2008).
[FN103] . Id.
[FN104] . Alexander A. Bove, Jr., The Purpose of Purpose Trusts, 18 Prob. & Prop. 34, 34 (May-June 2004).
[FN105] . Id.
[FN106] . Hirsch, supra note 1, at 33-34.
[FN107] . Bove, supra note 104, at 34.
[FN108] . Id. at 34-35.
[FN109] . Hirsch, supra note 1, at 34.
[FN110] . Adam J. Hirsch, Trusts for Purposes: Policy, Ambiguity, and Anomaly in the Uniform Laws, 26 Fla. St. U. L. Rev. 913, 913 (1999).
[FN111] . Id. at 913-14.
[FN112] . Id. at 914.
[FN113] . Id.
[FN114] . Id.
[FN115] . Id.
[FN116] . Bette Heller, Trusts for Pets, 26 Colo. Law. 71, 71 (Mar. 1997).
[FN117] . Bove, supra note 104, at 34.
[FN118] . Id.
[FN119] . Id.
[FN120] . Id.
[FN121] . Id.
[FN122] . Hirsch, supra note 1, at 52.
[FN123] . Id.
[FN124] . Id.
[FN125] . Id. at 58.
[FN126] . Bove, supra note 104, at 35.
[FN127] . Hirsch, supra note 1, at 52.
[FN128] . Bove, supra note 104, at 35.
[FN129] . Id.
[FN130] . Rowland, supra note 24, at 16.
[FN131] . Emily Gardner, An Ode to Roxy Russell: A Look at Hawaii's New Pet Trust Law, 11 Haw. B.J. 30, 30 (Apr. 2007).
[FN132] . Block, supra note 2.
[FN133] . Casteel, supra note 14, at 9.
[FN134] . Jennifer R. Taylor, A “Pet” Project for State Legislatures: The Movement Toward Enforceable Pet Trusts in the Twenty-First Century, 13 Quinnipiac Prob. L.J. 419, 420 (1999).
[FN135] . Id.
[FN136] . Casteel, supra note 14, at 9-10.
[FN137] . Glenn, supra note 3, at 26.
[FN138] . Id.
[FN139] . Taylor, supra note 134, at 420.
[FN140] . Heller, supra note 116, at 71.
[FN141] . Taylor, supra note 134, at 420.
[FN142] . Id. at 421.
[FN143] . Glenn, supra note 3, at 27.
[FN144] . Id.
[FN145] . Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 Santa Clara L. Rev. 617, 621 (2000).
[FN146] . Id.
[FN147] . Id.
[FN148] . Id.
[FN149] . Id.
[FN150] . Id. at 622.
[FN151] . Id.
[FN152] . Id.
[FN153] . Id.
[FN154] . Id.
[FN155] . Id. at 623.
[FN156] . Id.
[FN157] . Id.
[FN158] . Id.
[FN159] . Id. at 624.
[FN160] . 1 I.R. 225 (Ir. H. Ct.) (1932).
[FN161] . Beyer, supra note 145, at 624.
[FN162] . Id.
[FN163] . Id.
[FN164] . Id. at 625.
[FN165] . Casteel, supra note 14, at 9.
[FN166] . 247 S.W. 739 (Ky. Ct. App. 1923).
[FN167] . Id.
[FN168] . Id.
[FN169] . Beyer, supra note 145, at 626.
[FN170] . Id.
[FN171] . Id.
[FN172] . Id.
[FN173] . Id.
[FN174] . Id. at 627.
[FN175] . Id. at 629.
[FN176] . Id.
[FN177] . Id.
[FN178] . 444 P.2d 353 (Cal. 1968).
[FN179] . Gardner, supra note 131, at 30.
[FN180] . Id.
[FN181] . Id.
[FN182] . Id.
[FN183] . Glenn, supra note 3, at 27.
[FN184] . Id.
[FN185] . Id.
[FN186] . Id.
[FN187] . Id.
[FN188] . Gardner, supra note 131, at 30.
[FN189] . Id.
[FN190] . Id. at 31.
[FN191] . Id.
[FN192] . Id.
[FN193] . Id.
[FN194] . Id.
[FN195] . Id.
[FN196] . Glenn, supra note 3, at 27.
[FN197] . Gardner, supra note 131, at 31.
[FN198] . Id.
[FN199] . Glenn, supra note 3, at 27.
[FN200] . Id.
[FN201] . Coxwell & Devereaux, supra note 12, at 439.
[FN202] . David M. English, The Uniform Trust Code: Vagaries and Variations, A.L.I. 307, 325 (2007).
[FN203] . Gustafson, supra note 6.
[FN204] . Id.
[FN205] . Id.
[FN206] . Id.
[FN207] . Id.
[FN208] . Andrew Tran, Owners Mull Pets' Futures: As More Animals Receive Trusts, Centers Providing Home and Care are on the Rise, Orlando Sentinel, Dec. 26, 2007, at B3.
[FN209] . Animal Statutes, http://www.professorbeyer.com/Articles/Animal_ Statutes.htm (last visited Mar. 24, 2008).
[FN210] . The twelve states without some form of pet trust legislation include the following: Connecticut; Deleware; Georgia; Kentucky; Louisiana; Maryland; Massachusetts; Minnesota; Mississippi; Oklahoma; Vermont; and West Virginia.
[FN211] . Pet Trust Statutes, http://www.estateplanningforpets.org/legal-statutes.htm (last visited Mar. 24, 2008).
[FN212] . Kara Blanco, The Best of Both Worlds: Incorporating Provisions of the Uniform Trust Code into Texas Law, 38 Tex. Tech. L. Rev. 1105, 1124-25 (Summer 2006).
[FN213] . Rong Xiaoging, PETS: Helmsley Dog Faces Trouble, Miami Herald, Sept. 30, 2007, at H10.
[FN214] . Block, supra note 2.
[FN215] . Id.
[FN216] . Id.
[FN217] . Helen W. Gunnarsson, Posthumous Pet Protection Provisions, 92 Ill. B.J. 395, 395 (2004).
[FN218] . Caruso, supra note 10.
[FN219] . Erline Andrews, Weird Last Requests Not Always Honored, Chicago Tribune, Aug. 12, 2007, at Q8.
[FN220] . Block, supra note 2.
[FN221] . Caruso, supra note 10.
[FN222] . Polly Wants an Estate Planner, South Florida Sun-Sentinel, Dec. 19, 2007, at 1A.
[FN223] . Id.
[FN224] . Id.
[FN225] . Zenov & Ruiz-Gonzalez, supra note 5, at 26.
[FN226] . Block, supra note 2.
[FN227] . Zenov & Ruiz-Gonzalez, supra note 5, at 26.
[FN228] . Glenn, supra note 3, at 27.
[FN229] . Xiaoging, supra note 213.
[FN230] . Glenn, supra note 3, at 27.
[FN231] . Zenov & Ruiz-Gonzalez, supra note 5, at 25.
[FN232] . Id.
[FN233] . Zenov & Ruiz-Gonzalez, supra note 5, at 25.
[FN234] . Id.
[FN235] . Id.
[FN236] . Id.
[FN237] . Cynthia Hubert, In Case Your Dog or Cat Outlives You: Estate Planning for Pets, Chi. Trib., Nov. 24, 2006, at 1.
[FN238] . Maryann Mott, And to My Dog, I Leave a $10,000 Trust Fund, N.Y. Times, May 22, 2005, at 36.
[FN239] . Joanne M. Pye, Changing The Animal Legal Paradigm Using the United States Tax Code, 30 Cap. U. L. Rev. 947, 948 (2002).
[FN240] . Types of Trusts: Overview, supra note 101.
[FN241] . See Carolyn Wilkes Kaas, Probate in the Twenty-First Century, 13 Quinnipiac Prob. L.J. 347, 348 (1999).