Pets are as loved as any other member of a family these days. Although our pets can’t inherit money, you can protect them if they outlive you. There are two main considerations when planning for your pets in the event of your death or incapacity: placement and financial support. The structure for this care can be handled by way of a Last Will and Testament or a Trust. Through the Last Will and Testament, you can provide direction regarding care, as well as an outright gift to the caregiver. However, the Will is only effective at your death and you have to trust the caregiver to follow your directions without being bound to do so. The preferred method, and the one to be addressed most extensively herein, is the Trust.
By use of a Trust, you can provide for continuity of care upon your disability, incapacity, unavailability, or death. The Trust provides mechanisms to ensure the money left is used for your stated purpose, and detailed instructions regarding your intentions can be communicated. Generally, a pet trust is valid for the life of the pet (or the last surviving pet, if more than one). The properly drafted Trust provisions will cover primary and alternate caregivers, directions regarding day-to-day care as well as extraordinary care, and final disposition of the pet.
The caregiving function can be separated from the financial management of the Trust assets, and it is often advisable to appoint one person as caregiver and a separate person as trustee. The chosen caregiver should be someone who will provide the same day-to-day care and affection as the pet is accustomed to receiving. Therefore, it is important to consider whether the caregiver is capable and in a position to do so. For instance, if your chosen caregiver already has a dog, and your dog is not suitable for a multi-pet household, perhaps you should reconsider. Successor caregivers should be included in the Trust, in the event your first appointee is unable to fulfill his duties.
Your chosen trustee will be responsible for managing and distributing the trust assets to the caregiver. The trustee is a fiduciary and must act responsibly in carrying out your expressed wishes. Once again, it is vitally important to be as specific and as clear as possible in outlining your wishes and objectives, with respect to your pet’s care and comfort, including specific information regarding veterinary care and intervention. If the value of the property left to care for the pet exceeds the amount required (as determined by the court), the excess property will be distributed back to you or to your estate.
In order to ensure your appointees comply with your wishes, a trust protector can be appointed. The trust protector has the authority to enforce and ensure the property left through the pet trust is properly handled and spent to carry out your wishes, and can remove a non-performing trustee.
If you have not considered your pets in your estate plan, now may be a good time to do so. If you would like further information, please contact PLDO Senior Counsel Leah A. Foertsch in our Florida office at 561-362-2030 or email lfoertsch@pldolaw.com.
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