My wife and I have three miniature dachshunds. They are very cute and very much a part of our family. We were talking recently (my wife and me, not the dogs) about what will happen to them if something happens to both of us. Most people don’t think about this when doing their estate planning, but they should. Luckily, I am an estate planner and have dealt with this issue many times in D.C., Maryland and Virginia, where I am licensed to practice law. I’ve come to realize that this is an important and sensitive topic, not only for my family but for many others who also love their pets.
Until recently, we didn’t have many options. Because our pets are considered “tangible personal property”, we could leave them under a will or trust to someone who hopefully would provide the pets with a good home for the rest of their lives. We also could leave the recipient/caretaker some cash to care for the pets, as long as the cash is used at least in part to care for the pets. In addition, we could leave specific instructions to the recipient/caretaker regarding how we want Fido, Spike and Bruno (not their real names) treated. If one caretaker predeceases us, we would want to list alternative caregivers under the will or trust. Finally (and as a last resort), we would try to make arrangements with the local humane society, animal rescue league or pet “rest” home to adopt and care for our animals.
Fortunately, today (at least in our local jurisdictions, as well as Pennsylvania and Delaware, but not West Virginia) we have the additional option of creating a “pet trust.” This relatively new form of trust allows us to provide for the care and maintenance of our pets in the event of our disability or death in the manner in which we may have cared for them. My wife and I would be the “grantors” (also referred to as “creators” or “settlors”) of the trust and we would name a “trustee” to hold property (such as cash or other assets) in trust for the benefit of our pets. This arrangement can be set up during our lives or following our deaths; a living trust works best, if we are concerned about what happens to our pets in the event we become disabled. In D.C. and Virginia, the trust can last until the death of the animal named as the trust beneficiary or upon the death of the last surviving animal alive during our lifetime. In Maryland, the trust terminates upon the death of the last surviving animal alive during the settlor's lifetime. (This extended term is really valuable if you own long-lived pets, such as parrots, horses or tortoises.)
A critical point in setting up the trust is to pick a reliable individual trustee and a successor or two to care for the pets and manage the trust assets. We can split the caretaker duties from the asset management duties to ensure we have the right people performing the right functions. For example, we may want Cousin Bobby to manage the trust assets, but have one of our kids care for the dogs. We also should identify our pets to avoid fraud, including photos, microchip identification and other identifying information (such as DNA samples). Creating a single trust for all pets living at our death is the most practical way to approach the pet trust. We can incorporate the trust into an existing trust or will, or set up a separate trust document for the pet trust.
The trust also should provide detailed information about our pets’ special needs, such as dietary restrictions, health care and veterinary check-ups. The trust should include enough assets to last the lifetime of our pets in the manner in which we want them to be cared for, and should provide for the cost of the pets’ burial and/or cremation. We may want to provide assets for attorney consultations as well (although the fees I charge myself are quite reasonable!). If there are any assets remaining after our pets’ demise, we will want to choose a beneficiary to receive the assets of the trust. Many of my clients elect to give the remaining assets to the caretaker or trustee of the trust. Others elect to leave the remaining assets to the ASPCA or local humane society or animal rescue group.
If you love your pets as much as we love ours, you will want to consider setting aside funds for their care after you are gone. By creating a valid and enforceable pet trust, we all can be more confident than before that our pets will be cared for according to our instructions and wishes.