Creating a Trust for Your Pet
In the late 1940's President Harry Truman was quoted as saying: "If you want a friend in Washington, get a dog."
And more than a half century later "man's best friend" (and other domestic pets) are even more popular — and not just in Washington or among Democrats. A recent survey conducted by the National Pet Owners found that 72.9 million American households own one or more pets and that in most households the pets are deemed to be family members. In fact, it has become common place in the last few decades for pet owners to provide in their Will or Trust for their furry or feathered companion.
Given these facts, it is not surprising that the Colorado Legislature passed a law in 1994 recognizing the right of individuals to create "Honorary Trusts for Pets." Essentially, this Act provides that you may: (1) appoint a Trustee to manage the Trust; (2) allocate funds to care for the pet; (3) leave a portion (or all) of your estate to a pet or to that pet's offspring; (4) impose conditions and requirements on the Trustee for the care of the pet; (5) designate where the pet is to live; and (6) determine who will receive any funds that are remaining after the "pet beneficiaries" are deceased.
Unfortunately, the "Honorary Trust for Pets Statute" is not widely known, and thus many pet owners are unaware that they can provide for the care of their pet. Others are aware of the statute, but believe that they will outlive their pet or that a friend or neighbor will insure that the pet is placed in a suitable home. However, an owner's sudden illness or death may result in the pet becoming homeless or shipped to an animal shelter. Seniors in particular, often with few or no remaining family members, worry what will happen to their pets if they should die or have to move to assisted living or a nursing home.
As a starting point, pet owners should develop a plan (either in the owner's Will or a Living Revocable Trust) that will address the immediate needs of the pet in the event of the owner's death. The plan should designate a family member, neighbor or friend who has agreed to serve as a temporary care-giver care for the pet during the administration of the owner's estate.
When selecting a temporary care-giver for your pet, it is prudent to select someone who "knows" the pet and who has successfully cared for a pet of their own. Whenever possible select someone who does not currently have a pet or who has a pet that would be compatible with your pet. If you have more than one pet, they should be kept together if possible, especially if they have bonded. Finally, keep in contact with the designated care-giver over time to ensure that his or her circumstances have not changed, and that he or she is still willing to care for the pet.
In the event that the temporary care-giver cannot be found or is unwilling to serve, the Executor or Personal Representative of a Will or the Trustee of a Trust should be authorized to find a satisfactory replacement temporary home for the pet until it can be placed in its permanent home. This may take time, so the owner's Trust or Will should authorize the Trustee or the Personal Representative to utilize estate funds to cover the pet's expenses, i.e. food, veterinary bills, boarding, grooming expenses, etc.
In making provisions for the care of your pet, you will need to decide whether to utilize a Will or a Living Revocable Trust. While in many cases a Will may be adequate, a Living Revocable Trust is preferable for two reasons. The provisions in a Living Revocable Trust take effect if you become incapacitated, which insures that your pet is taken care of regardless of the situation. And, second, the Trustee of a Living Revocable Trust remains "on the job" until the death of your pet. Thus, he or she can monitor the care of your pet to insure that it is properly cared for and that your instructions are followed.
Colorado law does not limit the amount of the bequest to the pet, nor does it require any specific language to be inserted in the Will or Trust. For all intents and purposes the owner is free to set forth in his or her Will or Trust the terms and conditions of the bequest to his or her pet. However, if a dispute arises (say, by disinherited family members or disgruntled beneficiaries), the matter will wind up in front of a judge which can be both expensive and time consuming. Thus, it is important to secure the advice of an experienced estate planning lawyer who has the expertise and knowledge necessary to draft provisions for the care of your pet that will give you the peace of mind that comes with knowing that your best friend will have a good home and proper care after you are gone.