Life Care Planning: Give back to animal companions — provide for their care

By Sandra W. Reed

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

Addie, a precious member of our family, died last week. Addie was 16 and, despite increasing trouble with arthritic joints, she managed to get up and down the stairs and take her daily walk, even on her very last day. The X-rays, ordered after she couldn’t keep food down, revealed multiple tumors in her lungs and liver.

“It’s time,” Dr. Gary Crabtree said, and we did the humane thing, hard as it was. We stayed with her and held her as she settled into sleeping pose. Finally, Dr. Crabtree placed the stethoscope on her heart and said, “She’s gone.” Addie slipped away with the same dignity and grace she gave to life. Never a whimper, never a complaint.

How to Provide for Pets When Their Humans Die

We outlived our Addie, but if we had gone first, we would have wanted her well cared for after we were gone. The topic of how to effectively care for pets after death is detailed in a book by Barry Seltzer, a practicing lawyer in estate planning, and Gerry W. Beyer, a professor of estate law. Appropriately titled Fat Cats and Lucky Dogs, the book encourages pet owners to plan ahead for these beloved companions while they (the humans) are alive and competent.

Establishing a pet trust is one method to provide for a non-human family member. There are two kinds of pet trusts. In the traditional trust, the owner designates a trustee who holds the funds for the benefit of the pet but distributes sums to the person who is caring for the pet in accordance with the terms set out in the trust. The trustee is instructed by the trust to continue these distributions to that person for as long as the beneficiary takes proper care of the animal.

Traditional trusts are recognized as effective in all states. They are preferred by some owners because they give the owner more control.  he traditional trust allows the owner to specify: (1) who will be the trustee to manage the property; (2) who will be the beneficiary to act as caregiver to the animal, (3) the type care the animal will receive;(4) what happens if the beneficiary cannot or does not take care of the animal; and (5) the disposition of the animal after the animal dies.

The other pet trust is a statutory pet trust, available in 45 states, including Texas. The Texas statute, set out in Texas Property Code §112.037, provides that a pet owner can establish a trust for an animal who is alive during the lifetime of the person setting up the trust.  The trust ends automatically when that animal dies or, if the trust provides for more than one animal, when the last of these animals dies.

A statutory trust can be established by using such simple wording as “I leave $5,000 in trust for my dog, Pooch.”  The probate court will fill in the gaps and appoint someone to be trustee of the sum for the benefit of Pooch.  The upside of the statutory trust is the simplicity of the language used to create it.  The downside is that the court, rather than the benefactor, chooses who takes care of the pet and in what manner.

When to Establish the Pet Trust

The pet trust can be established while the owner is living through an inter vivos trust or at death through a testamentary trust.  The inter vivos trust takes effect immediately, so it will be in place if the owner becomes mentally or physically unable to care for the pet.  The testamentary trust goes into effect after the owner dies, but only after the will has been found to be valid in court.  The downside is that leaves a gap of time in which funds may not be available to care for the pet.  The testamentary trust is less expensive to administer because no administration costs are are incurred during the owner’s lifetime.

The testator should seek competent council of an attorney familiar with pet trusts to determine which type trust best meets the needs of human and animal.

Appropriate Amounts for Funding a Pet Trust

The amount of money needed to fund a pet trust will depend primarily upon the age, health and life expectancy of the animal.  As with humans, the lifestyle the owner wishes and can afford for the pet must be taken into consideration.  The funds will need to be increased if expensive medical treatments are anticipated.  Amounts for boarding or animal-sitting should be included for times the caregiver will have to be away for business or vacation or otherwise temporarily unable to personally administer care.

Avoiding Tensions and Jealousy with Family Members

It may not always be possible to avoid tension and jealousy of family members and heirs when a trust is established for an animal.  However, conflict can be reduced through a measured approach to the value of assets conveyed into the pet trust.  Avoid placing an unreasonably large portion of the estate in the pet trust.  Disgruntled heirs will likely challenge the conveyance or even the competency of the testator if the pet trust is too large.  Also, if the court deems a conveyance unreasonable, the judge may substitute a lesser figure for funding the trust.

Provide for Exhaustion of Funds and Caregiver’s Inability to Continue Care

If possible, choose a caregiver who would be financially able to continue care of the pet if the pet trust funds are exhausted.  Name a successor caregiver who can take over if the initial caregiver is no longer competent or willing to continue service.

Non-human family members like Addie give their best to us.  It is only right we should plan for their care when we can no longer give it.

Sandra W. Reed is an attorney practicing in Glen Rose, of counsel with the Fort Worth elder law firm of Katten & Benson.  Phone: 254-797-0211;  email:  swreed2@yahoo.com.

 

 

 

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