I have often been asked what happens to pets if the owner is incapacitated or after the owner’s death. Great question and unless planning is done in advance, the potential for continued care of your favorite pet is problematic. Fortunately there are some solutions that, when implemented, will permit you to have peace of mind when it comes to their care if you are incapacitated or after your death.
For most situations, the best way to ensure continued care for your pet is by establishing a Pet Trust. This can be done within the context of your personal estate planning and Pet Trust provisions are often included in a Will or Revocable Trust so that they take effect upon your death. If you have a Revocable Trust, Pet Trust provisions can also be established so that continued care for your pets is available if you are incapacitated during your lifetime.
A Pet Trust is what we also call an honorary trust. Since your pet is unable to enforce your instructions in the trust, the trustee you designate to carry out your wishes is on his or her honor to fulfill the terms of the trust. However, you can also name an Enforcer (someone interested in the well being of your pet) to ensure that the trustee carries out the instructions if that is a concern for you. Once appointed, an Enforcer is entitled to rights akin to a trust beneficiary (e.g., right to receive accountings, notices, and other information from the trustee) and (if court appointed) entitled to reasonable compensation from the trust assets.
Normally, a Pet Trust is overfunded with assets to ensure continuation of care for the life of the pet. Anything remaining in the trust at the death of the last surviving animal is distributed to the owner’s beneficiaries. The extent of the funding will depend on a lot of factors including life expectancy and the type of pet (e.g., horse… or … cat?). The trustee is limited in his use of the trust assets and funds distributed into a Pet Trust may only be used as expressly stated in the trust instrument.
Every situation is unique, so it is important to discuss the care of your pets with an attorney who specializes in trusts and estates.
**This blog is intended only for the purpose of providing general information and does not constitute legal advice. By providing this information we are not establishing an attorney-client relationship and nothing contained in this website should be construed to necessarily be applicable to your unique situation. You should always engage the services of an attorney to determine which, if any, legal solutions are right for you.