HorseLaw: Dear, What Will Become of Ol Dobbin After Weve Gone? *
Robert O. Dawson
Professor of Law
University of Texas
School of Law
[reproduced from Summer 2001 Caution:Horses, Vol. 6, No. 2]
With proper care and a little luck, horses can live for 20, 25 or even 30 years. Sometimes, they outlive their owners. When that happens, the surviving horses become property in the estates of their deceased owners. Subject to laws prohibiting cruelty to animals, the law treats surviving horses and other companion animals just like any other assets in the estate. Unless specific instructions are provided in a Will, the executor (if a Will was left) or administrator (if no Will was left) is free to keep the equine asset in the estate, sell it at auction or by private treaty or otherwise humanely dispose of it, such as by euthanizing it. The choice is made by the executor or administrator.
The problem of caring for horses is more substantial than for smaller pets, such as dogs or cats. Horses live longer, are more expensive to maintain, require specialized knowledge to care for properly and often require expansive facilities not readily available in urban America.
You cant just make a gift of property to the horse. Horses cant own property and are notoriously poor asset managers. Someone must be designated to care for the horse.
Creating a Trust. Devoted horse owners often wish to provide specifically for their beloved equine friends. That desire can present some interesting legal issues. The most direct approach to satisfying this desire is for the owner (settlor) to create by Will a trust for the care of surviving horses. The trust would identify the equines to be cared for (the beneficiaries), name a person to care for them (a trustee) and identify property to be invested (the corpus) to produce income to be used to care for the horses. After the last beneficiary has died, the trust instrument provides for dissolution of the trust and distribution of the remaining corpus.
Such an arrangement creates two legal problems: Unless carefully drafted, it might violate the rule against perpetuities. It might also violate the rule against honorary trusts.
The Rule Against Perpetuities. Most states recognize a rule that prohibits an owner of property from tying up ownership of property for extended periods of time after death. The rule is that property cannot be tied up for longer than 21 years plus a life or lives in being at the time the trust is activated. The lives must be human, not equine. The measuring lives must be identified in the trust instrument and must be such that whether they remain in being can be readily identifiable at later dates. The lives chosen, however, are not required to have anything to do with the trust instrument. The trustee need not be a measuring life. Members of the Kennedy clan or descendents of Queen Elizabeth II could be used to maximize length of control by the settlor.
Given the longevity of equines, the rule against perpetuities is not a problem if anticipated by the trust draftsman. The instrument would provide that the trust terminates upon death of the last equine or upon expiration of 21 years after the death of the last measuring life, whichever comes first.
The Rule Against Honorary Trusts. The second problem is more substantial. A trust assumes that the beneficiary can bring a lawsuit against the trustee, if necessary, to enforce the terms of the trust instrument. Horses cannot bring lawsuits. Therefore, some courts say that one cannot create a trust to benefit a horse and if one attempts to do so, the effort is invalid.
A handful of states have solved this problem in a direct fashion by enacting a provision validating honorary trusts for the care of domestic animals based on a provision in the Uniform Probate Code. For example, an Iowa statute solves both the perpetuities and honorary trust problems with two simple sentences: "A trust for the care of an animal living at the settlors death is valid. The trust terminates when no living animal is covered by its terms." Iowa Code Ann. § 633.2105. Alaska has a similar provision. Alaska Statutes § 13.12.907. So does Arizona, Arizona Revised Statutes Ann. § 14-2907, California, Wests Ann. California Probate Code § 15212, Colorado, Wests Colorado Revised Statutes Ann. § 15-11-901, Michigan, Michigan Compiled Laws Ann. § 700.2722, Montana, Montana Code Ann. § 72-2-1017, New Mexico, New Mexico Statutes Ann. § 45-2-907, New York, McKinneys Con. Laws of New York Ann. Chapter 17-B, § 7-6-1, North Carolina, Wests North Carolina General Statutes Ann. §36A-147, and Utah, Utah Code § 75-2-1001.
A Missouri statute also provides that a trust for the care of animals is valid, but only for a period of 21 years: "A trust for care of pet animals . may be carried out by the intended trustee for twenty-one years or any shorter period specified by the terms of the trust although it has no ascertainable human beneficiary or might, by its terms, last longer than the period of the rule against perpetuities." Vernons Ann. Missouri Statutes § 456.055. Tennessee has a similar provision limited to 21 years. Tennessee Code Ann. § 35-50-118.
Alternatives to Honorary Trusts. Even if there is no provision in your jurisdiction validating honorary trusts for the care of animals, there are alternatives available. One is to make a outright gift of the horse and of property to a person with a request, not a directive, that the person use the property to care for the horse. The care provision is not enforceable because it is a gift, not a trust.
Obviously, the key here is to know the person to whom the gifts are made and to trust that person. There is nothing legally to prevent the donee from selling the horse to the killers and pocketing the property. His or her soul might rot in hell for doing so, but the law will not intervene.
You can will your animal to a charitable organization that takes care of such animals. For example, the School of Veterinary Medicine at Purdue University has a "Purdue Peace of Mind Program" in which it agrees to care for a pet after your death for a gift of $25,000 per pet. One can contact the Program at 800-830-0104. Of course, there are many organizations, such as horse retirement or rescue facilities, that will be happy to take care of Ol Dobbin for a generous gift.
Be aware, however, that such a charitable organization remains free to reject your gift and your horse if for any reason, such as the size of the gift, it chooses to do so. You should, therefore, have an alternative plan in your Will just in case the organization no longer exists or looks the gift horse in the mouth and rejects it when the time comes.
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