Environment, Energy and Natural Resources

Pet Trusts

Presented by the Animal Law Committee of the Environment, Energy and Natural Resources Section of the D.C. Bar

Author: Angela S. Robinson, Esq.

Please Note: This article was designed to identify and explain the legal issues related to the pet trust aspect of estate planning for D.C. residents as a public service of the Animal Law Committee of the D.C. Bar. It is not and shall not be considered legal advice. Consult an attorney if you have any legal questions regarding the legal issues discussed herein.



Introduction
Although people hate to think about it, proper estate planning is essential to ensure the proper handling of one’s final affairs–including providing for one’s animals. Moreover, providing for one’s animals after death is part of being a responsible animal caregiver. Pet trusts were established to make this legally possible, as one cannot leave assets to an animal outright.

Before the creation of pet trusts, the law did not necessarily or fully recognize a person’s desire to provide for their animals. Of course, even today not everyone appreciates such intentions. So the preparation and implementation of a pet trust should involve individuals who take these intentions seriously.
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What is a trust?
A “trust” is a legal instrument used to manage property, established by one person (the “grantor”) for the benefit of another (the “beneficiary”). The trust is managed by a “trustee.” Trusts are commonly part of overall estate plans and are becoming more popular.
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What is a pet trust?
A “pet trust” is a trust established specifically for the care of one or more animals. The animals are the beneficiaries, and the trustee is legally obligated to use trust funds for the animals’ benefit as instructed. The pet trust is established according to state law to ensure that it is valid and enforceable.
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Do all states have pet trust laws?
Not all states have pet trusts. The District of Columbia and, as of July 2006, Virginia have pet trusts along with approximately 26 other states. Maryland does not have a pet trust law, but efforts to change this through the legislature are on-going. Maryland residents can create a trust for a human beneficiary indicating that trust funds may be used for care of the animals, but such trust provisions are “honorary” and cannot be enforced.

The District of Columbia’s pet trust law, DC Code §19-1304.08 - Trust for care of animal, provides:

(a) A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the law surviving animal.

(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.
DC Law 15-104, §2(b), 51 DCR 208 (effective March 10, 2004).
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What terms should be included in a pet trust?

Identify Beneficiaries
. The animal beneficiaries must be living or in vitro at the time of the grantor’s death. As one may have multiple animals throughout the course of life, and different animals at death than when a trust is created, the animals should not be designated by name or description. Instead, a phrase such as “any animals owned by [grantor] at the time of death” should be used. Microchips are one effective method to identify which animals were owned by the decedent without imposters expanding the class of beneficiaries.

Select a Trustee
. A trustee and one or more alternates should be designated in the pet trust. A separate “caretaker” also can be named, but is usually the trustee unless the trustee is an organization or someone not capable of living with or caring for the animals. Sometimes an “enforcer” is designated to ensure the trustee follows the terms of the trust. In any case, these parties should be trustworthy, responsible, and willing to see to the well-being of the animals.

Identify Remaindermen.
A “remainderman” is one entitled to the remains of a trust. (Often an organization dedicated to helping animals is designated as the remainderman of a pet trust.)

Fund the Trust.
Any money or other assets designated to a pet trust must be reasonable based on the class of animal beneficiaries. If the funding is challenged by, e.g., a relative, the court will order that any funding considered excessive pass to the remainderman (if designated), or to the successors in interest in the grantor’s probate estate.
It is impossible to predict with certainty the number, ages and needs of one’s future animal beneficiaries. But guidelines exist to help calculate reasonable provisions for the trust including veterinary expenses, caretaker stipends, trustee insurance, etc. Also, including a house or farm in the pet trust will be considered reasonable only if for the benefit of a large class of animals, such as those belonging to an animal rescuer. If only one or two animals are involved, it will be difficult to justify the use of an entire house. The house may be bequeathed directly to the caregiver instead.

Understand the Timing
. A trust should remain in effect until the last animal beneficiary dies. Any funds left in the trust at that time pass to the remaindermen. One of the benefits of a trust is that it can be prepared to go into effect immediately, versus having to wait until probate is completed.
Consider Other Trust Provisions. There are more provisions that can be included in a pet trust than can be discussed here. A qualified attorney can help someone establish a trust appropriate for his or her circumstances and desires–and avoid drafting pitfalls.
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What if I do not have a pet trust?
Without a pet trust in place, animals are treated like any other property in an estate. An animal can be bequeathed in a will to a particular person, or pass with the residual (i.e., property that remains in an estate after all specific gifts are made). Directives to euthanize animals after the owner’s death, however, will not be honored so long as other alternatives exist.
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Is there any reason I would not want a pet trust?
A pet trust may not be worth the effort if one has a small estate. Also, a trust must be enforced over the life of the animal beneficiaries to be effective. It might be better to identify in a will someone who would genuinely care for the animals. The risk exists, however, that this person prematurely meets with their own demise or some other circumstance that prevents her from caring for the animal.
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How much does it cost to establish a pet trust?
The estate planning needs of each person are different. Preparation cost is determined by the time it takes to review personal and financial information and prepare the will and trust.
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Where can I get more information?
For more information on the above topic, consult:

Humane Society of the United States (HSUS).
The Doris Day Animal League.
American College of Trust and Estate Counsel (ACTEC).
www.estateplanningforpets.org.

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Written and developed by Angela S. Robinson, Esq., Washington, D.C., for the Animal Law Committee of the Environment, Energy and Natural Resources Section of the District of Columbia Bar.

© Copyright 2006.