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Man’s Best Friend Deserves Man’s Last Fortune

A guide to including pets in estate planning

 By Sarah Krasner

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Think back over your holiday shopping. You bought a garish tie for dad, a new sweater for mom, something to embarrass your sibling, and a giant pack of treats, a new bed, and five new toys for your pet. Your pet is family, and you treat them even better than your human family members most of the time. However, there’s one more gift that your pet needs even more than an automated snack dispenser: inclusion in your estate plan. If you want to ensure that your pet has all the love and care she or he deserves if something happens to you, then a pet trust is a necessity.

What Not to Do

Thelma Russell handwrote a will bestowing a few trinkets on her closest heir, her niece, and split the bulk of her estate between Chester and Roxy. The niece sued and won Roxy’s share. (Estate of Russell (1968) 69 Cal. 2d 200.) Why? Because Roxy was a dog.

Under the law, pets are treated as property, not people. You can’t leave your property to another piece of property; therefore, you can’t leave half your estate to your dog in your will. This case is also an excellent demonstration of why you need an estate planner, not a handwritten, self-drafted will.

Instead, an estate planner can include a pet trust within your trust, which will ensure your pet has not only the money necessary to live in comfort, but a loving caretaker and legal protections as well. While a will can cause a lapse in care as your estate is probated, a trust can ensue continuous care for your pet as the Court won’t be involved.

The Mechanics

Pet trusts are a statutory creation. Every state and Washington D.C. has passed legislation approving of pet trusts, so it is important to ensure your pet trust follows any statutory requirements of your state. Which state you live in will affect the enforceability and even the funding of the trust you can create. In California, pet trusts are governed by Probate Code § 15212.

The main roles in a pet trust are:

  • Trustee: in both a traditional trust and a pet trust, a trustee manages and distributes the funds;
  • Caretaker: receives the funds from the trustee and puts them towards the pet’s daily care;
  • Trust Enforcer: ensures the funds are used as intended.

These roles should be fulfilled by different people to prevent conflicts of interest. A trustee and a caretaker are necessary, the role of trust enforcer is optional.

The pet trust terminates when no animal living on the date of the settlor’s death remains alive, unless the trust instrument says otherwise. By statute, the unexpended trust property at the end of the trust goes first as the trust instrument directs, then through the residuary clause of the settlor’s will if it was created by the will, and lastly if those do not suffice to distribute all, to the settlor’s heirs.

The Practicalities

When you create a pet trust, you need to think carefully about who will best carry out your wishes. While your pet trustee may be the same as your regular trustee, you will need a separate caretaker and trust enforcer. In considering who could fill these roles, you may wish consider these questions:

  • Who among your friends and family is willing and able to take in your pets?
  • Who do your pets get along with?
  • Who is responsible and caring, but not a pet person?

A pet is a big responsibility, and even someone fastidious and kindhearted may not want the day to day responsibility. That person may be better as your enforcer or trustee. For each position, try to find two or three people, in case something happens to your first choice. Additionally, you may want to consider organizations to name as your last caretaking and trust enforcer options.

Another decision is how much money to leave and how much to distribute, and in what intervals. While this may depend on your financial situation, it is also important to estimate how much money may be needed to care for your pet. Is your pet likely to have medical issues in the future due to its breed or an extended lifespan due to its species? A ‘yes’ answer to either question could mean more money would be needed. You should also consider how much your trustee should distribute, for what purposes, and how often. If you intend to set aside your entire estate for your pets, do you intend for them to continue living in your house with a caretaker who will move in with them? If so, you may need to specify in your trustee instructions how you want taxes and maintenance to be paid.

A pet trust can be drafted to name specific pets, or more flexibly, to refer to all pets in your keeping when you die. A separate dossier for each pet can be included as an appendix or kept with your trust. At the basic level, this should include the name, age, and distinguishing features of your pets, so that the caretaker knows who to look after. However, this dossier is your chance to ensure better care for your pets by explaining their likes, dislikes, food preferences, veterinarians, medical history, and even current photos.

Conclusion

A pet trust is integral to ensuring that your furry, scaley, or feathered family members are looked after when you are no longer able to care for them. Here at Morrill Law we are happy to assist you in creating an estate plan that provides for your future and the future of everyone you love, human and animal alike.