If you’ve gone through the process of creating an estate plan, then you’ve looked to your future, thought about how it might affect the people important to you, and taken steps to ensure you can protect them as much as possible and that your wishes are followed after you die or lose capacity.
But what about your pets? If you’re a pet owner, your animal companions are like a part of your family, and the idea that they might suffer because something happens to you is distressing.
Luckily, you can protect your pets like you do your family and loved ones. Pet planning is the part of estate planning that allows you to ensure your animals receive proper care regardless of what happens to you. Like other aspects of estate planning, pet planning takes some time and consideration to implement effectively, and it’s customizable to your needs, regardless of the kind or number of pets you have or how you want them cared for.
Here’s how to plan for your pets’ care in the event you’re no longer able to care for them.
How to Make Sure Your Pets Will Be Cared for When You Pass
A pet trust is perhaps the single most useful and effective pet planning tool available today. As with other types of trust, you can think of a pet trust almost as a kind of company that exists for one specific purpose: to pay for the needs of your pet.
Creating and using a pet trust is not difficult. You can even set it up fairly quickly through Trust & Will. Though there are different requirements depending on your state, there are several things you’ll have to address to ensure your trust is effective.
The Trust Agreement
When you create a trust, you create an entity that’s similar to – though legally different from – a corporation. Like a corporation, the trust exists independently of the people who work for it or own it. And, as with forming a corporation, if you want to create a trust, you have to go through specific steps required by law.
As the person creating the trust – known as the trustor, grantor, or settlor – you decide what purpose the trust serves, who works for it, and who benefits from its efforts. The process begins with a document known as a trust agreement, which details the rules under which the trust must operate and identifies specific people that must be involved in order for it to do so.
1. The Terms
The first step in creating a trust agreement is identifying the pet or pets you want to care for. You can then think about the kind of care standards you want the pets to receive. For example, if you want to ensure that your pet gets a specific kind of food or is taken to a park on a regular basis, you can include those terms in the trust document. You can also include contingency terms that apply in specific circumstances, such as what should happen if your pets develop an incurable disease.
2. The Caregiver
With the terms in place, it’s time to select a caregiver. The caregiver is the person, or sometimes an organization, who effectively serves as your pet’s new owner after you die or lose capacity. Unlike an owner, however, a caregiver is only responsible for caring for the pet in your absence and does not have the ability to transfer ownership. The caregiver must also comply with the care terms you chose. If the caregiver fails to perform their duties, the trust, through the trustee, can remove them and have a new caregiver take over.
When choosing a caregiver, consider whether the person you’re thinking about is willing to care for your pet, as well as whether they’re responsible enough to do so. While a young relative might love and be eager to care for your dog, for example, they aren’t usually the best choice as a caregiver. Similarly, elderly relatives may be less and less able to care for your pet as they – and it – age. Also, if you want your trust to cover multiple animals and want separate caregivers for each, you must include this as well.
Important factors to consider when choosing a caregiver include how much room the animal needs, how much care it requires, how long it can be unsupervised, and similar aspects of both it and the caregiver’s lives. You also need to select more than one caregiver – the primary caregiver and one or more successors. If the primary caregiver is unable or unwilling to care for the pet when the time comes, the responsibility will fall to the successor.
Finally, you need to decide if, and how much, you will pay the caregiver. Professional or organizational caregivers, such as animal shelters, usually require some form of payment. Payment may not be necessary if you ask a friend or relative to care for your animal, but including it can provide an incentive for someone who is otherwise reluctant to take on the responsibility.
3. The Trustee
The trustee of your pet trust is responsible for managing the property the trust owns – known as the corpus – and distributing those funds to the caregiver as they pay for the pet’s care. The trustee is also responsible for enforcing the terms and conditions you include in the trust. For example, if you require that your pets receive regular yearly vaccinations or veterinary care from a specific veterinarian or a suitable replacement, the trustee has to ensure that the caregiver follows these requirements. If the caregiver fails to do so, the trustee can take steps to make sure your wishes are followed, such as demanding the caregiver act appropriately or replacing the caregiver with someone else.
As with caregivers, your trust should name both a primary trustee and one or more successor trustees. You also must consider what kind of trustee to choose: professional or individual. Unlike a caregiver, the trustee will have to manage the assets the trust owns, a job that’s not always easy to do.
- Individual Trustees. An individual trustee is a person you know and trust who you ask to serve as trustee if and when the time comes. When choosing an individual, you should select someone who has a good understanding of financial management, who can follow the instructions and requirements you’ve decided upon, and who is willing to devote the time and effort needed to manage the financial requirements imposed by trust management. Like caregivers, individual trustees don’t always have to receive compensation for their services, but it’s up to you to decide if they do and how much is appropriate.
- Professional Trustees. Most people who create a pet trust typically choose individual trustees because pet trusts are typically not very large. But if you plan on creating a trust with more than about $200,000 in assets, an institutional or professional trustee is usually necessary. If, for example, you have one or more large animals, such as horses, the care and expenses they require can easily exceed $250,000, especially if the horses are young and expected to live for several decades.
An institutional trustee is an organization that specializes in managing trusts. Banks, trust companies, and financial services companies commonly serve in this role. These organizations manage multiple trusts of many kinds and have experience with both the financial and legal aspects of the trust management process.
Professional trustees charge fees for their services, though these fees vary greatly depending on the nature of the trust, the time it takes to manage it, and the organization. Professional administrators typically charge a flat fee for small trusts, which can range from about $500 to $3,000 or more per year. If the value of the trust exceeds $250,000, the yearly administration fee is typically charged as a percentage of the trust’s value, which can range between about 0.05% and 0.5% per year.
4. The Beneficiary
A trust’s beneficiary is the person or organization that receives the benefits of the trust’s assets. In the case of a pet trust, your pet is the beneficiary. You have to identify each pet you want the trust to protect, which you can do by name, by including photos, or by any other suitable means.
Beyond naming and identifying beneficiaries, you must also choose how you want the trust’s funds distributed after your pet dies by choosing a remainder beneficiary. Remainder beneficiaries can be an individual, such as a relative, or a group or organization, such as a church or charity. In general, it’s best not to leave the leftover funds to a caregiver or trustee as this might give them an incentive to artificially shorten the animal’s life or provide less-than-adequate care.
Funding the Trust
After choosing a trustee and caregiver, you’re ready to fund the trust. Funding is the process of transferring assets into the trust’s name so the trustee can distribute them to the caregiver. Without funds to spend, your trust is worthless, so ensuring it’s funded properly is essential.
Once your trust is created, you can transfer assets to it just as you would to an individual. You can, for example, go to a bank, set up a new account in the trust’s name, write a check to the trust, and deposit the funds in the trust’s account. Because your pet trust is designed to care for your pet in the event of your death, you may not want to fund it immediately, as those funds will be tied up in the trust and won’t be available to you for other purposes. It’s common for people to direct, for example, that their pet trust is funded only after they die. You can do this with a variety of tools, such as by naming the trust the beneficiary of a life insurance policy, or by including the trust as an inheritor in your last will and testament.
If you want to create a pet trust to care for your pet in the event you become disabled, you can create the trust and fund it immediately. You can also use a springing or durable power of attorney, a document that gives someone else the power to manage your finances and use your money to fund the trust in the event of your incapacitation.
Pet Trust Limitations
Pet trusts are the most useful pet planning device available today, but they have limitations. Though state laws differ, there are several factors you need to be aware of before you create a trust.
Currently Living Pets
You can use your pet trust to provide for the care and protection of animals or pets you currently own or which you own while you’re still alive. Animals that are born after your death are not covered. For example, if you’re a dog breeder, you can create a pet trust to provide for the care of all of the animals that you own now or which you might own in the future. But if your breeding dogs have a litter of pups after you die, you can’t use the pet trust to care for them. If you want to protect animals that are born after you die, you’ll need to speak to an estate planning attorney to go over your options.
When you fund your pet trust, you must ensure that you only do so with as much as is reasonable to ensure your pet receives the kind of care it needs. There are many ways to do this, but the most common is to estimate how many years the animal is likely to live after your death and multiply that by how much it costs to care for the animal each year. You’ll then have to add in the cost of paying the trustee and caregiver for their services.
While there’s no specific limit to how much you can transfer into a pet trust, state laws typically require that your trust can only have as much as is needed to pay for reasonable or necessary expenses associated with your pet’s care. That effectively means that if you transfer too much of your estate to the trust, a court could rule that amount excessive. If that happens, the court will distribute the excess assets. How those assets get distributed will depend on your estate plan or your state’s inheritance laws.
There are some legal requirements your trust document must meet in order for it to be valid. State laws differ significantly, and you must be sure that your document meets all state requirements or all your efforts could be for naught. The best way to ensure your trust meets any relevant legal requirements is to consult with a licensed attorney in your state.
Requirements may include:
- Signing and Notarization. You, as the settlor, have to sign the trust instrument, and you typically must do so in the presence of a notary public. A notary is a state-licensed professional who can certify that the person signing a document is who they claim to be. However, notaries cannot tell you if your document is legal or give you legal advice.
- Witnesses. In some states, such as Florida, you may have to sign your trust document in the presence of two competent adult witnesses.
- Registration. Some states require you to file some types of trust at a local courthouse.
Pet Planning Without a Pet Trust
Even though a pet trust is probably the most effective way to provide for your pet’s care in the future, other estate planning tools are available. None of them are as comprehensive as a pet trust, but they may be useful to some pet owners. Even if you create a pet trust, you can use other estate planning devices to give yourself and your pet additional protections or options.
Perhaps the most common way animals get cared for after the death or incapacitation of an owner is by an informal agreement. For example, owners often ask a relative or family friend to take care of their animal after the owner gets sick or can no longer care for the pet. These agreements happen all the time and can involve anyone you like. As long as you’re willing to give the animal to someone else, and the other person is willing to care for it, you can use this kind of plan.
That said, informal agreements offer the least protection. If, for example, you give your daughter your dog when you move to a retirement home, you have no way of controlling how she cares for the animal or even whether she keeps it. Your daughter could decide to drop the dog off at a shelter as soon as she takes possession.
If you choose to use informal agreements as a part of your pet plan, be sure that the person you choose is trustworthy and responsible. If you don’t know any family members or friends who fit this description, there might be animal welfare organizations in your area that would be willing to care for your pets.
Gifts, Inheritances & Powers of Attorney
Similar to informal agreements, you can use a power of attorney or a last will and testament in pet planning. Through your will, you can give your pets to someone as an inheritance; through your power of attorney, you can give your agent the ability to care for your pets and use your money to pay for this care.
It’s important to note that you cannot, and should not, use your will to leave direct inheritances to your pets as you would to a relative, friend, or charitable organization. Pets are considered a type of property and legally cannot own property on their own. If you leave an inheritance to your animals or name them as beneficiaries of your estate in any way, those assets will not transfer as you intended. Instead, your estate plan or state’s laws of intestate succession will determine who inherits the assets you wanted to give to your pet.
As with an informal agreement, there’s little to no way to guarantee that the person who inherits your pet provides the kind of care you want it to receive. Further, if you leave money as a gift to pay for the pet’s expenses, there’s no way to prevent the recipient from doing what they want with that money, such as keeping it and getting rid of the pet.
Similarly, if you want to protect your pet in the event you lose capacity, you can direct the agent under your power of attorney to either care for the pet themselves or give it to someone who can. Your agent has a legal duty to look after your best interests and act in accordance with the terms of your power of attorney.
As with informal agreements, you need to choose someone responsible and trustworthy to care for your pet if you want to leave the animal as a gift, or if you want to give your agent the power to care for it if you’re incapacitated.
Letters of Instruction
A letter of instruction is an estate planning device that’s designed to work in conjunction with your will, trusts, and other devices. Unlike a legally enforceable tool, such as a last will and testament, a letter of instruction is an informal device that isn’t submitted to a probate court.
Letters of instruction are designed to allow you to leave behind instructions, information, or express wishes that have little effect on your property or assets, but which are nevertheless important. You can, for example, use a letter of instruction to leave personal messages or wishes to your loved ones, detail the kind of funeral services you do or do not want, and detail how you wish to distribute family heirlooms or items of sentimental value. You can also use it to guide your executor on how to access your digital accounts, where to find important documents, and who to contact if you’re injured or unconscious.
Because letters of instruction don’t have to meet any legal requirements, you can change and update yours whenever you like. This malleability makes them well-suited to leaving behind instructions for pet care. As you acquire or lose pets over time, you can use your letter to leave instructions on things like how you want the pet to be cared for and who should take it. However, since letters of instruction are not enforceable, and they can’t be used to set aside assets for pet care, they’re best used in conjunction with other estate planning tools.
Pet planning can be an easily overlooked aspect of pet ownership. But you love their pets, and loving them means ensuring their health and security regardless of what might happen to you. A pet plan gives you peace of mind in knowing that you’ve done all you can to protect your beloved animals and ensure they’ll be cared for no matter what the future holds.
Do you have an estate plan for your pets?