In the latest Weekly Wright Report:
Estate Planning for Pet Lovers: Living Pet Trusts
In connection with my Estate Planning practice, I was asked a question regarding the care of pets. Specifically, the questioner stated that they understood that one can make provisions in a will to take care of pets in the event of the owner’s death, but their concern was what can be done if the owner is very much alive. The questioner stated that his mother had a stroke and that he and wife cared for her dog and two cats. His concern was that if something happened to him, was there a way that he could provide for his pets’ care through legal means while he was incapacitated.
There is a common misconception about Estate Planning, for people or for pets. Namely, that it is only about making provisions after a person has died. Estate Planning is also about ensuring needs are met and wishes fulfilled during times of disability. Obviously, bequests in a will (“I leave my beloved dog to my brother”) or a Pet Trust in a will (called a testamentary trust), will kick in after the death of the benefactor because a will is effective at the time of the benefactor’s death. But there is another kind of trust, one made outside a will, that will provide benefits upon disability as well as death. That is why people make Living or Inter Vivos Pet Trusts. However, to be effective, these trusts require that they be funded during lifetime, as opposed to only upon death. The provision will be activated when the person is alive but unable to care for the pet, many times enabling the person to continue to live with his pet. Even if this is not possible due to the condition of the owner, the Trust will release the funds and enable the care for the pet that the owner wants so that the pet can continue to be cared for as the owner intends. With a will, the funds are released and other provisions take effect only upon the death of the benefactor.
Let’s say a person was ill and was not physically able to care for the pet, but they still very much want their pet near them. A Pet Trust outside a will could provide not just dollars to pay someone to come in and care for the dog (walk, feed, play with) but could also provide additional funds for transportation, vet visits, boarding, etc. If need be, the trust could provide for a case worker to coordinate the services, including making sure the environment is clean and safe, both for pet and owner. The Trust can be set up in a way that the pet will be cared for as the owner wishes, even though the owner is not able to physically/mentally handle the care himself.
So, through an Inter Vivos Pet Trust, (made outside a will), a person can provide for the future care of pets in the case of disability of the owner. If the provisions are made only in a will, either as a bequest or a trust, this would not be the case as a will requires the death of a person to activate.
There are other possibilities such as the use of a power of attorney, a contractual arrangement and all kinds of arrangements one can imagine, but in this writer’s opinion, a well drafted Inter Vivos Trust offers the most comprehensive opportunities.
If you have questions, please email me at mgordon@wcslaw.com.