Setting Up a Pet Trust



Rachel Hirschfeld, Esq.

The Hirschfeld Pet Trust


For many seniors, pets are beloved family members. They’re constant,
never-complaining companions.

But there’s a worry: What will happen to your pets if you become
incapacitated or after your death? You certainly don’t want them to be
mistreated or euthanized prematurely.

You may think that your friends or relatives will care for your pets
if you can’t. They might -- but they might not.

Strategy: Consult an attorney about setting up a trust for the benefit
of your pet or pets.*

LACK OF “WILL” POWER

Some people provide for pets in their wills.

Example: Cathy Davis leaves $10,000 in her will to her niece Marina,
with instructions to care for Cathy’s beloved terrier, Scrappy.

Reality: Such provisions are not enforceable. Marina can pocket the
money and abandon the dog without fear of legal reprisals.

The same outcome would result if Cathy leaves $10,000 directly to
Scrappy in her will. Pets are considered to be property, so they can’t
legally inherit anything.

MUCH BETTER WAY

Instead of relying upon your will, which won’t be effective, create a
trust.

Start by contacting an attorney familiar with pet trusts and estates.
You can find one by entering “pet trusts” into an Internet search
engine. Or go to my Web site, The Hirschfeld Pet Trust, www.pettrustlawyer.com

, and request a call from a pet trust expert.

Fees will vary from attorney to attorney and from area to area. Expect
to spend several hundred dollars and up, depending on how much detail
you want in the trust documents.

Every trust has a trustee -- or cotrustees -- who is legally
responsible to care for the assets in the trust.

When trust beneficiaries can’t care for themselves, as is the case
with a pet trust, guardians (often known as caretakers) for the
beneficiaries should be named. Oftentimes, friends or loved ones will
be more than happy to agree to serve as caretakers.

Vital: While not legally required, it’s a good idea to get the advance
consent of a trustee or guardian before naming him/her in a legal
document. Name backups in case your first choice becomes unable or
unwilling to serve. Have all parties sign the pet trust showing their
agreement.

Caution: With a pet trust, the beneficiaries can’t complain if they
receive poor service from the trustee. Therefore, name someone you
believe to be conscientious.

Even so, you may prefer to name one person as a trustee and another as
caretaker for your pet so that each party can keep an eye on the
other.

Your pet trust also may designate another party as a “trust protector”
to disburse funds to the trustee, who then disburses funds to the
caretaker.

Because some animals outlive all caretakers and trustees, consider
naming one or two not-for-profit, no-kill animal shelters as backup
caretakers. Check the “Worldwide Shelter Directory” on the Hugs for
Homeless Animals Web site (www.h4ha.org

).

SOONER OR LATER

There are two strategies to follow when creating a pet trust...

During your lifetime. You can arrange for the trust to become
effective while you’re alive.

At your death. Your will can call for the creation of a pet trust.

Pros and cons: Creating a trust while you’re alive means that you
won’t know if you’ll outlive your pet, making the trust unnecessary.

Waiting until your death for the trust to go into effect will
eliminate the risk of providing for a pet who has predeceased you.
However, there’s a chance your pet will lack care if you are unable to
care for your pet.

Strategy: Create a pet trust while you are alive. Stipulate that the
trust will become effective only when you are unable to care for your
pet or you die.

If you set up a pet trust during your lifetime, you can transfer
assets into it at any time. A trust established after your death by
the person you appointed in your will to be caretaker or trustee can
be funded from your estate.

Recommended: Make arrangements for the trust to be funded when
necessary -- at your incapacity or your death.

Funding a pet trust can be tricky. You’ll want to feel comfortable
that your pet is adequately provided for. However, if you fund such a
trust lavishly, you may open the door to legal challenges. Other
potential heirs might attempt to undo the entire arrangement, saying
that you were not of sound mind.

Always give good reasons in the trust document for the amount you
transfer to a pet trust. This will substantiate your good judgment and
enforce the pet trust in case of a contest.

One approach is to work with an unrelated party, such as a certified
public accountant (CPA), to determine a reasonable amount to fund the
trust.

Example: Your CPA might determine that your total cost for caring for
your pet (food, vet bills, boarding) is $1,000 per year. If you were
to die or become incapacitated tomorrow, your pet might reasonably
live another 10 years.

Strategy: Thus, you might fund your pet trust with at least $10,000.
Add money to fund an aging pet’s additional medical needs. You might
also want to compensate the trustee and the caretaker. And you can
leave money to hire an attorney in case your pet trust is challenged
-- or to pay additional costs if your pet lives with you in an
assisted-living facility.

Tactic: Rely upon an insurance policy on your life for some of the
trust’s funding. Provide that any assets remaining at your pet’s death
will go to a charity, perhaps an animal shelter. Note: Income
generated by assets in a pet trust is taxable.

FINAL THOUGHTS

Trusts are very versatile. When drawing up a pet trust, you can make
specific provisions for the care of these close companions.

Examples: A pet trust can include instructions requiring the caretaker
to bring the pet for visits with you should you become incapacitated
and your condition prevents the pet from living with you. Often, such
visits can improve the pet owner’s physical and mental health.

If you have more than one pet, the trust documents can stipulate they
remain together, if that’s your wish. Alternatively, your dog might be
entrusted to someone with a big yard while your cat’s guardian is
another person, who is not allergic.

Day-to-day directions: You also can spell out what your pet likes to
eat, which vet it has been seeing and what medications it needs.
Include whatever instructions you would like in order to ensure
continuity of care for these cherished friends.

*Currently, 37 states and the District of Columbia allow pet trusts.
Check with your state attorney general (www.naag.org) or local Humane
Society to find out the law in your state.


Bottom Line/Retirement interviewed Rachel Hirschfeld, Esq., 330 E. 49
St., New York City 10017. Creator of The Hirschfeld Pet Trust
(www.pettrustlawyer.com) and chairperson of the Board of the Greater
New York Chamber of Commerce, she serves on the New York State Bar
Association Special Committee on Animals and the Law.