Remember To Include Your Pet In Your Estate Plan

Approximately 63% of U.S. households own pets, yet few have made arrangements for the care of their pets in the event of their disability or death.

To make arrangements for your pets in the event of your disability, you can include authorization in your Power Of Attorney for your attorney-in-fact ("Agent"), to take custody of your pet, and use your funds to provide for their health, care, and welfare. It is preferable if you specify the expenditures you are authorizing your Agent to make for your pets. You may either designate your Agent or another individual or entity as the custodian of your pets, and further appoint another individual to oversee the care being provided by the custodian.

Arrangements may also be made for the care of your pets after your death. Prior to October 1, 2009, the avenues available for a person to make arrangements for their pets upon their death were unsatisfactory, in that Maryland law did not permit  trusts to be established for animals. Therefore if a pet owner wanted to provide for their pet after their death, he or she could gift a sum of money to an individual, and request that they use that gift for the care of their pet. Since the money gifted was not held "In Trust", the beneficiary of those funds was under no legal obligation to use the money gifted for the care of the pet,  and could use that money for their own benefit without any recourse.

With the enactment of Maryland's animal Trust law, effective October 1, 2009, pet owners may now include in their Will or Revocable Living Trust,  a  trust providing for the care of their pets. The "Trust For Care Of Animal" law, authorizes the creation of a trust whereby a pet owner gifts an amount of money to a named trustee of the pet trust, to be used for the care of the pet, which must be alive during the lifetime of the pet owner. The law provides that the trust terminates upon the death of the pet, or if several pets are provided for, upon the death of the last animal covered by the trust. The pet owner may also include specific directions as to the care of their pet, and name a person to monitor the caregiver to  be certain that the pet is receiving the care directed, and if not, grant that person or a court appointed individual the power to enforce the trust provisions.

A pet owner should also consider including other provisions in their pet trust. It is wise to incorporate provisions creating "checks and balances".  For example, by designating two different unrelated individuals or organizations to serve as custodian and trustee, you will have more assurance that the money which you are gifting to the trustee of your pet trust will in fact be used for their care. Further assurance that your pet is being well taken care of, could be obtained with provisions in your trust granting the trustee, the authority to visit the home of your pet's custodian on a monthly, quarterly, etc. basis, to be certain that your pet is receiving proper care. In the event that the trustee finds that they are not, then the trust should give the trustee the authority to immediately remove the pet from the custodian's home and deliver the pet to the successor custodian named in your trust.  You may also consider including in your trust, provisions authorizing the trustee to pay the custodian a monthly fee for allowing your pet to reside with them (rent free), or for the time they spend caring for your pet. To discourage any self- dealing however, it is not wise to name the custodian as the beneficiary of any funds remaining in the trust upon the death of your pet, rather, it is preferable that another individual(s) or organization(s) be named as beneficiary.

The trust you establish for your pet should clearly state what services or purchases your trustee is authorized to make using trust proceeds. That is, in addition to authorizing the trustee to spend trust funds for the pets care, health and welfare, include specific authorizations to address more specific needs. For example, authorization to spend trust assets for animal treats, veterinary care, such as yearly teeth cleaning, nail trimming and emergency care. The specific authorization  would depend upon the type of animal it is. For example, horses need daily exercise and training, which should be addressed in the trust provisions. It is also important to provide the custodian with a care plan for your pet, listing any ailments that the animal has, and the current and proposed treatment plan.

Finally, as with the appointment of any trustee, you should choose a credible and trustworthy organization or individual to serve in this capacity. It is also important that you obtain the consent of the person or organization who you intend to name as the custodian of your pet, before naming them as such in your Will. For more information on providing for your pet in the event of your disability or death visit the website of the Human Society, at petsinwills@hsus.org.

Published in 2010 in Generations newspaper.