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UNDERSTANDING PET CARE AND ESTATE PLANNING

As part of the estate planning process, pet owners should consider who will care for their pets should they no longer be able to provide such care themselves.  The laws of the Commonwealth of Virginia provide a variety of mechanisms for pet owners who wish to provide specific instructions for pet care after the death or disability of the pet owner, such as creating a trust for the care of his or her pet (a “pet trust”), making an outright gift of the pet to a caretaker, or drafting for pet care within a durable general power of attorney instrument.

WHAT HAPPENS TO A PET WHEN A PET OWNER DIES OR LOSES CAPACITY?

Thousands of pets are euthanized in animal shelters each year because their human care givers died or became ill and made no arrangements for the continuous care of their pets.  When a pet owner dies without providing specific instructions for the care of his or her pet, the pet is treated as personal property and legally passes to the beneficiaries under the pet owner’s Last Will and Testament (the “Will”), or to the heirs of the estate of the pet owner if the pet owner does not have a Will.  When a pet owner loses capacity, the pet is often left with whomever has taken over the management of the property of the pet owner.  

PET TRUST

Under the laws of the Commonwealth of Virginia, a pet owner may create a valid and enforceable pet trust during the life of the pet owner and/or upon the death or incapacity of the pet owner.  Only pets which are alive during the lifetime of the pet owner may be provided for under such pet trust.  By law, the pet trust terminates upon the death of such pet, or upon the death of the last surviving pet if the pet trust was created to provide for the care of more than one pet.

Creating a Pet Trust

A pet trust may be created during the lifetime of the pet owner (sometimes referred to as an “inter vivos revocable trust”) or upon the death of the pet owner through a Will (sometimes referred to as a “testamentary trust”).  An inter vivos revocable trust can name the pet owner as trustee of the trust and/or caretaker of the pet, and the pet owner can voluntarily resign as trustee and/or caretaker when taking care of the pet becomes too difficult for the pet owner.  A testamentary trust, on the other hand, is created only after the death of the pet owner, and fails to provide for pet care if the pet owner loses capacity during life.

How a Pet Trust Works

Funds from a pet trust will be distributed to the caretaker as provided by the instrument creating the trust.  Examples of how some pet owners direct these funds be distributed include expenditures for food, shelter, medication, veterinary care, toys, boarding, and the respectful disposition of the remains of the pet after the death of the pet.  The pet trust also should name a beneficiary who will receive any trust property remaining after the pet dies or any excess trust property if a court determines that the trust property exceeds the amount needed for the intended purpose of the trust.

Choosing a Caretaker for Your Pet

When creating a pet trust, the pet owner should carefully choose a caretaker for his or her pet.  A caretaker is the person who will provide pet care if the pet owner is no longer able to provide such care.  The pet owner may no longer be able to provide such care because of physical reasons, such as an inability to take the pet for a walk; because of mental reasons, such as Alzheimer’s disease; or due to death.  The pet owner also should name a successor caretaker in the event that the original caretaker is unable to act or, due to a change in circumstances, is unwilling to act in such capacity at the time the pet owner dies or loses capacity.  A pet owner might consider discussing the decision of who would be an appropriate caretaker with family members and close friends.  If no family or friends are able or willing to act as caretaker, the pet owner could seek the advice of the pet’s veterinarian with regard to an appropriate organization to provide pet care.  In addition, the pet owner should consider designating a non-caretaker as trustee of the trust.  A trustee, who is not the caretaker, could be given the authority to enforce the trust in the event the caretaker is not acting in accordance with the provisions of the pet trust.

Funding a Pet Trust

Another important consideration for the pet owner is deciding the amount necessary to properly fund a pet trust.  The funding of a pet trust will depend upon the life expectancy of the pet, the standard of pet care desired, and the estimated cost of veterinary care, food, and other expenses of the pet.  The pet owner will also need to determine the type of property used to fund the trust.  For instance, a pet owner may desire to fund the trust with cash, stocks, or bonds to ensure funds are available to pay the expenses of the pet at the necessary time.  In addition to funding the trust with liquid assets, the pet owner should provide specific instructions if tangible property of the pet owner is necessary for the care of the pet, such as a crate or other shelter.

Standard of Pet Care

A pet owner also may wish to include specific instructions within the pet trust with regard to the standard of pet care to be provided.  For example, a pet owner may specify the desired type of food, how often the pet is to receive veterinary check-ups, and the requisite amount of exercise for the pet.  In addition, a pet owner may wish to clearly set forth the circumstances when euthanasia of the pet is appropriate, if ever, and provide guidance for proper disposition of the pet’s remains after the death of the pet. 

In order to ensure that the pet trust is enforceable and properly drafted, a pet owner may wish to seek the advice of an experienced attorney with knowledge in such area.

OTHER PET CARE PLANNING METHODS

There are other options (other than through a pet trust) for a pet owner to provide specific instructions regarding the care of his or her pet, such as making an outright gift of the pet to a caretaker or drafting for pet care within a durable general power of attorney instrument.

Gifting of a Pet  

Under the laws of the Commonwealth of Virginia, a pet owner may make an outright gift during his or her lifetime, or a bequest in a Will, of his or her pet to a caretaker along with funds necessary for pet expenses.  In addition, the pet owner could include a provision in an inter vivos revocable trust, of which the pet owner is trustee, gifting the pet to a caretaker when the initial trustee is no longer able to care for the pet or when the initial trustee voluntarily resigns.  A pet owner using any of the above-referenced transfer methods should carefully designate a caretaker who can be trusted to use the funds transferred along with the pet for the benefit of the pet.  With an outright gift or bequest, the decisions of the caretaker with regard to the pet are not subject to objection by any trustee or other fiduciary.  In addition, the pet owner should consider the possibility that the specifically-named caretaker may be unable or unwilling to provide a suitable level of care for the pet in the future.

Drafting for Pet Care within a Durable General Power of Attorney Instrument

A pet owner may desire to include a provision in his or her durable general power of attorney instrument authorizing his or her attorney to provide pet care upon the disability of the pet owner.  If a durable general power of attorney instrument is used for this purpose, the durable general power of attorney instrument should include express provisions directing the attorney to care for the pet and expend amounts necessary to provide such care.

© 2010 GANDERSON LAW, P.C.