Pet Trusts – Considering the What Ifs
February 4, 2022
Pets become members of your family. You love them dearly, care for them and want to be sure they are also loved and cared for if they survive you after you die. You may wish to consider including provisions for them in your estate plan. If do not have provisions for your pet in your estate planning documents, then you may wonder how your pet will be cared for after your death.
Your pet is considered personal property, passing on like any piece of tangible property. This is unlike a recent decision in Spain, where a new law was passed deeming pets family members (which becomes important as to visitation rights, shared custody, and the like, in situations of divorce).
That is not the case here. Your pet may be left to relatives, friends, or even given away or taken to a shelter. Some consider an oral agreement with a relative or friend to take their pet and setting aside some money to care for the pet after death, but that is no guarantee that they money will be used for your pet’s care. Establishing in your estate plan designates how and what you want for your pet after your death.
Your pet can be included in your will by way of a testamentary (pet) trust, or a separate revocable trust agreement. This is something to discuss with your estate planning lawyer in crafting your documents. It may depend on whether you want to create a trust during your lifetime or rather if you wish for the trust to start upon your death.
Florida Statute 736.0408 provides the authority for a trust to care for an animal:
- A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on 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, on the death of the last surviving animal.
- A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is 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.
- Property of a trust authorized by this section may be applied only to the intended use of the property, 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 as part of the settlor’s estate.
Some questions and considerations to have in creating a trust for your pet would include the caregivers to take ownership of your pet on your death and where your pet will live, the amount of money to be used for their care and maintenance, whether there is any need for a trustee to distribute funds to the caregiver or directly to any others such as a veterinarian, or what if there are certain health concerns for your pet that necessitate particular care requirements?
What if you are incapacitated and unable to make decisions for your pet? Something you may wish to discuss with your estate planning lawyer, in addition to designating your own pre-need guardian, may be to establish a caregiver or guardian for your pet in the event you are incapacitated.
You may also wish to consider what should happen to your pet when your pet dies, including where your pet should be buried. If there are funds remaining that you had designated for your pet’s care, you may also consider what happens with those funds, including whether those funds are to pass with the rest of your will or trust, or somewhere else.