Yes, Virginia, you can provide for your pets in your estate

From this week’s mailbag: “I don't much care for my children. Can I leave my entire estate to my Miniature Schnauzer, Wolfgang, and my tabby cat, Mitzi?" /s/ Pet Lover.

Dear Pet Lover: You cannot leave your estate to your pets. Animals are legally incapable of taking title to property. Even if they could, they'd probably sell off your shares of Amazon and invest in Meaty Bonz. (Schnauzers never pay attention to price-to-earnings ratios.)
The law does allow you, however, to establish a trust to provide for the care of your pets after you die. But you need to address your issues with your children. I recommend counseling.

At least, that's what my fellow advice columnists recommend when they want to sound authoritative and don't want readers to suspect they're just winging it.

Speaking of winging it, you can include birds in your trust for animals, since they are vertebrates. That is one of the requirements contained in the Washington probate code (Chapter 11.118, Revised Code of Washington) authorizing trusts for animals: The beneficiary must be a "non-human animal with a vertebrae." Sorry, jellyfish owners.

Before the statute went into effect a few years back, the administrator of your estate could have found him or herself in a real dogfight, so to speak, trying to enforce testamentary gifts (those made in a will or trust) to animals, which have been disfavored in American case law. According to the American Bar Association Journal,
“The common law courts of England looked favorably on gifts to support specific animals. This approach, however, did not cross the Atlantic. Attempted gifts in favor of specific animals usually failed for a variety of reasons, such as for being in violation of the rule against perpetuities because the measuring life was not human or for being an unenforceable honorary trust because it lacked a human or legal entity as a beneficiary who would have standing to enforce the trust.”

Regarding the “rule against perpetuities” – the bane of law students and bar exam candidates for generations – the less said, the better. The rule, designed to prevent “the dead hand” from controlling a family's wealth for generations on end, is itself essentially dead in Washington. One of its requirements was using an identifiable human life to determine if a trust was valid. That requirement is gone. The Washington Trusts for Animals statute specifically authorizes a trust “for the care of one or more animals” and provides that the trust will terminate “when no animal that is designated as a beneficiary of the trust remains living.” As long as Wolfgang and Mitzi are around to annoy each other and take up space on the couch, the trust will be enforceable.

Moreover, any person designated to care for the animals, any person having custody of the animals, or “any person appointed by a court upon application to it by any person” – opening up the field to just about anyone, has legal standing to enforce the terms of the trust. Again, Schnauzers are excluded from the list.

The trust needs to identify what animals it is intended to benefit. I recently drew up a trust as part of a will that incorporated by reference a separate list of the animals the client then owned, including breed, description and name, and I also included a provision that the trust was to benefit "any house-pets or other animals as defined in RCW 11.118.010 that [the client] may acquire after the execution of this instrument." But any offspring of those animals born after the client's death were specifically excluded, providing a disincentive for any named custodian to begin an aggressive breeding program in order to keep the trust income flowing.

Speaking of aggression, I think Mitzi just sunk her claws into Wolfgang. Some kind of territorial dispute on the couch.

Are you sure you don't want to trade them for a jellyfish?