By Bruce A. Katzen
A recent commentary the Daily Business Review caught my eye.  The author examined the allowability of pet trusts under Florida law.  While it is true that Florida law provides for the creation and enforcement of pet trusts, as a practical matter, your disinherited family can institute litigation to attempt to thwart your wishes.  I have handled high profile cases involving pet trusts and generally, I am not a fan of pet trusts that are funded with millions of dollars, like in the now-famous Leona Helmsley case.  Those trusts invite rightful question by the testator’s heirs and an opportunity for the testator’s caretakers to engage in fraudulent conduct in the years, months and days prior to the testator’s death.

In the event you do want to create a pet trust, I have previously written about the importance of honesty and candor with respect to testamentary intent.  While many people tend to avoid this blatant form of confrontation, particularly in their last days, if you are planning to leave a substantial sum to your pets, or if you are planning to disinherit your children for the benefit of your pets, it is a good idea to consider telling your family before you die.
In the event that honesty is not the best policy in your family, here are some things to consider if you are going to leave substantial assets to your pets.  First, it is important that you consult with a good trusts and estates lawyer to address any issues your family might raise about your mental capacity when they learn of your pet trust.  Also, if you do not want to notify your family of your intentions, consider notifying a few key witnesses who can testify to your state of mind in the event of a challenge.  While Florida law does allow you to provide for your pet, these tips may help your beloved Fido from actually recovering his inheritance.
When pet trusts are contested, it is extremely important for the courts to examine the amount of the trust and the proposed caretakers to evaluate whether fraudulent conduct such as undue influence may have occurred prior to the testator’s passing.