What is A Trust Protector?
I mentioned the possible use of a pet trust to my insurance broker and she asked if I had considered a Trust Protector. What is this and what does it do?
Denise Merlin, Oregon
Senior Counsel Sharon C. Nelson of Foley & Lardner, LLP, wrote a very clear understanding of this issue
"The use of trust protectors in trust documents is becoming more and more popular in today’s estate planning environment. The purpose of a trust protector is to provide flexibility to an irrevocable trust. However, before adding a trust protector to any documents, the grantor should carefully weigh the advantages and disadvantages inherent in the role of trust protector...
The trust protector holds a power to direct the trustee in matters relating to the trust. The role of the trust protector and the ability of the trust protector to direct the trustee will vary from trust to trust depending on specific drafting. The greatest advantage of having a trust protector named in a trust document is that it adds flexibility to the trust and allows the grantor to delegate someone to deal with almost every conceivable future circumstance. This is very attractive in today’s changing estate planning environment where the tax law is in flux. Use of a trust protector can allow amendment of the trust document to achieve positive tax results and allow administration consistent with the grantor’s intent when circumstances change...
The greatest disadvantage to the use of the trust protector is that the grantor is vesting significant power in one person. In addition, because the trust protector is often given the power to amend the trust to take into account the changes in the tax laws, beneficial interests may be altered. Finally, a common complaint of naming a trust protector is that it adds another level of administration and administration expenses..."
Next we will look at her discussion of who should serve as a Trust protector.
What is Conversion?
In a recent post here, we talked about an action in conversion.
I received an inquiry as to what this meant.
In general terms, conversion is an interference with someone else’s ownership of personal property. It is a general intent tort, or a civil action. (Although there can be criminal conversion)
Conversion deprives the rightful owner of the possession and use of his /her property.
The defendant's (the one who wrongfully is in possession of the property) reasons for the act generally cannot be used as an excuse. It is irrelevant that the defendant made a mistake in possessing the property.
The standard remedy for conversion is a money judgment for damages in an amount equal to the fair market value of the property or an immediate return of the property. Punitive damages (if a defendant commits an act that is malicious or intentional, possible excess money damages may be awarded to punish the defendant), are also possible because conversion is an intentional tort.
If you sneak into the garage next door and take your neighbor's golf clubs and keep them for yourself, he/she may bring an action against you for conversion.
Pet Custody Dispute Heads to Texas Court
There are probably more pets in this country than there are children.
Therefore, it is no coincidence that pet custody cases are on the rise.
We have discussed many times, such as here and here that although pet owners consider their animals a part of the family, most courts still consider them only to be personal property.
Here is another reported case involving a“custody “dispute over a pet
The Southeast Texas Record recently reported on a custody story. According to reporter, David Yates, the facts are as follows:
" A run-of-the-mill family feud has spilled into the civil realm over custody of a pet.
Given power of attorney by his father, a disgruntled brother has filed suit against his sister. The issue: the sister allegedly made off with the father's dog, Little Vicky.
Seeking punitive and mental anguish damages, J.W. Rogers sued his dog-nabbing sister, Lauren Jean Freedman, on June 9.
On Father's Day six years ago, J.W. Rogers and his wife Debbie gave his father Victor Rogers a dog named "Little Vicky," according to the suit.
"Little Vicky became a loyal and trusted companion and informal therapy dog to Victor Rogers," the suit states. "Little Vicky routinely slept next to Victor Rogers or bedside. Little Vicky also became somewhat of a watch dog for the household at night."
In his suit, J.W. goes on to say Victor is an animal lover and Little Vicky was a source of happiness for him until his sister robbed her father's happiness when she came to visit him at his Beaumont home during the 2008 Passover holiday.
"When Defendant Freedman returned to California, she took Victor Rogers' dog with her without permission or approval," the suit says.
"In fact, perhaps knowing she was acting inappropriately, she simply left a voicemail for J.W. Rogers telling him she was taking Little Vicky. Little Vicky is greatly missed by Victor Rogers. J.W. Rogers has made numerous attempts to have the dog returned to his father, all to no avail."
J.W. says he is entitled to recover conversion, intentional infliction of emotional distress, actual damages and punitive damages from his sister for her wrongful behavior.
He is demanding a jury trial..."
It will be interesting to follow this case and the decision that is rendered in this fact situation.
It may be another small step in the evolving law of pets as personal property.
Rules For Vacation Travel With Your Pets
With the Fourth of July weekend fast approaching, many of you will be traveling, even in the face of unacceptable gas prices,
The question again will arise…do we take the pets or not?
EzineArticles.com and author CS Swarens, offer the following useful tips.
..."Determine if Your Pet is Really Ready to Travel
Before you begin making vacation plans that included your four-legged friend, you need to make an honest assessment of your pet's temperament. Is your pet really ready to travel? If your pet has any of these conditions, you should probably send it to a pet sitter or kennel while you are traveling:
• Your pet is very young
• Your pet is very old
• Your pet is ill
• Your pet is pregnant
• Your pet is recovering from surgery
If your pet is extremely hyper, suffers from anxiety, or is otherwise easily upset, taking it on vacation may not be a very good idea.
Get a Clean Bill of Health
Even if your pet seems to be perfectly healthy, you should still take a trip to the veterinarian's office before you head out on vacation. Discuss your travel plans with your veterinarian and ask about any risks you should be concerned about. In addition, you should discuss what you should do if any of these risks occur, such as if your pet becomes carsick or restless while traveling.
You should also make certain your pet's vaccinations are up to date and you should obtain a rabies certificate to take with you while on the trip. If you are traveling by air, you will be required to present this certificate. Even if you are not going by plane, having this on hand will help you avoid potential heartache if your pet nips at someone while traveling. You might also want to consider having your veterinarian insert a microchip that will help you locate your pet if you become separated.
Purchasing a Pet Carrier
With your pet properly prepared to travel, you now need to purchase a pet carrier. The carrier needs to be sturdy and secure so your pet cannot escape. It also needs to be well-ventilated and roomy enough for your pet to be able to stand up and turn around. Be sure to allow your pet to spend time in the carrier before the trip. That way, your pet will be used to the carrier and, hopefully, will be comfortable with having to spend time inside of it. The carrier should also have handles on the outside. That way, if someone else needs to handle the carrier, there is no risk of that person getting bitten.
Be certain to print your pet's name on the outside of the carrier with a permanent marker. You should also write your name, your address and your phone number. In addition to writing your personal address, you should also write your destination so you and your pet can be reunited as quickly as possible if you are separated. After all, the last thing you want is to be worried about your pet when you should be enjoying a memorable vacation together..."
Good advice, all. Follow it, if you chose to travel with your pets.
They are your responsibility…
Check Your Local Pet Statutes
I am always interested in researching and learning about the laws of the various local, state and federal jurisdictions regarding domestic animals and pets.
I recently came across these ordinances for the county of Anne Arundel in Maryland.
If you don’t know (and I did not) that county is where the city of Annapolis is located.
A portion of the County ordinance provides:
Article 12 Section 4-402 Public Safety Threat
An animal poses a public safety threat if the animal:
Inflicts severe injury to a person
Bites a person
Kills or inflicts severe injury to a domestic animal
Attacks a person
Without provocation, chases or approaches a person in an attitude of attack
Engages in encouraged dog fighting activity or shows evidence of having been engaged in encouraged dog fighting activity
Article 12 Section 4-601 Rabies Vaccination
Anyone who owns or harbors a cat or dog 4 months of age or older must have the animal vaccinated for rabies and be able to provide proof of vaccination.
Article 12 4-702 Licensing
The owner of any dog or cat 4 months of age or older must obtain a license for the animal.
Article 12 4-801 Dog Outdoors
For each dog confined or tied outdoors, an owner shall provide:
A shelter to protect the dog from the wind, snow, rain, cold, and sunlight
A chain, rope, or line used to tie a dog which must be at least 10 feet in length
State and County law requires that all dogs have food and water.
Article 12 Section 4-903 Public Nuisance
The owner of an animal may not permit the animal to be a public nuisance or to cause a public nuisance condition. Public nuisance includes the following acts by an animal:
Molesting pedestrians
Chasing vehicles
Damaging property of someone other than the owner of the animal
Article 12 Section 4-904 Animal Disturbance Prohibited
It is unlawful for a person who owns, keeps, or has possession of an animal to permit the animal to disturb the quiet of a person or neighborhood.
Article 12 Section 4-905 Running at Large
"At Large” means off the property of an animals owner and not leashed and not under the control of a responsible person.
Article 12 Section 4-909 Removal of Animal Excreta
The owner of any animal shall be responsible for the removal of any excreta deposited by his or her animal on public walks, recreation areas, or private property other than his own.
Title 10 Penalty
Anyone violating section of Article 12 may be subject to a fine not less than $50 and up to $500
They look pretty standard except for the conditions for confining an animal outside.
And by the way, it seems like a heavy fine, up to $500.00 for not picking up your animal’s excreta.*
But if it is effective, I am all for it.
Make sure you realize that there are applicable city, county, state and federal regulations for your pets. Know them and follow them.
* Any waste matter discharged from the body…
Personal and Family Issues Cause Pet Abandonment
As a pet owner, you alone are responsible for the care and protection of your pet.
We try to provide insight and information to assist you in any number of areas that can affect this responsibility.
The tasks that you must undertake daily are not necessarily easy or convenient.
If these tasks become overbearing, the tendency is to simply allow the pet to go...to a shelter …abandonment...or other more undesirable methods.
According to dog-care suite 101.com, the following are the most common reasons given by owners as to why they abandon their pets:
Divorce
Death
Illness
New Baby
Behavioral Issues
Moving
Too Many Pets
Too Expensive to Keep
Lack of Time
You will note that all of these are stressful situations and most are of a very personal nature.
Just because times are tougher than normal, that is no reason to abandon your pet.
If you think of them as a family member or companion, treat them accordingly.
Plan ahead for bad times or bad contingencies for you and your pet.
Pets as Personal Property in Indiana
We had a recent inquiry about the possible recovery for emotional distress for an owner of a pet in the State of Indiana.
In March of this year, the Court of Appeals again addressed this issue in the case of Keene v. The State of Indiana
The facts in the case are as follows:
..."On November 28, 2004, Keene shot two dogs while hunting on a friend’s property. The two dogs were not on their owner’s property and were seen chasing a deer. The next day, Keene contacted the DNR and notified them that he had shot the two dogs while hunting. On December 9, 2004, he was charged with two counts of Class A misdemeanor criminal mischief.
Melissa Culbertson (“Culbertson”) owned the two dogs. On November 28, 2004, Culbertson noticed that her dogs were missing so the next day she hired a private investigation firm to look into the matter. Culbertson paid $2,501 for this service. When the dogs’ bodies were found, Culbertson had an autopsy performed by her veterinarian that cost $640. The replacement value of each of the dogs was $800. Also, the Culbertson family sought professional counseling in the amount of $540 concerning the loss of their dogs. Finally, Culbertson claimed that she had missed a week of work and took an additional seven days off work to attend court proceedings in this case. She testified that she made over $500,000 per year, yet provided no documentation of this amount. Culbertson claimed $3,000 for one day of lost wages. The trial court determined that she earned $2,500 per day. Culbertson requested $10,890.87 for restitution for the above expenses and for other expenses disallowed by the trial court.
On February 6, 2007, Keene pleaded guilty to both counts of criminal mischief and the trial court sentenced him the same day. The trial court ordered Keene to pay restitution and ordered the Victim’s Assistance office to determine the amount. That office filed a restitution order in the amount of $10,890.87, to which Keene objected. Keene is a truck driver who earns $25,000 per year. He has a twelfth grade education and few possibilities of earning more than his current wage as a truck driver.
After a restitution hearing on May 17, 2007, the trial court ordered Keene to pay restitution in the amount of $1,600 for both dogs, $640 for veterinary autopsy costs, $2,510 for the private investigator, $540 for counseling, and $6,000 for two days of lost income, for a total of $11,290. Keene now appeals..."
Although the Appeals Court ruled on a number of issues, it was clear that the value of the loss of the dogs to Culberson was equal to only the replacement cost as personal property under Indiana Code section 35-50-5-3.
Your pets may be priceless to you.
But in this case at least, there would be no monetary relief, or loss, for a companion animal nor emotional distress for the owner of a dog, in the Hoosier State.
Any Special Liabilities for a Horse as a Pet?
We are considering the purchase of a horse for our daughter, Katie. She wants to learn to ride, however we are concerned about possibly liability issues? Any help
Susan Cody, Wyoming
Susan, keeping a horse as a pet will present some unique problems. Although, I will add that many owners have done extensive estate planning for their horses.
Many states ( I believe all but CA, MD, NY and NV) have adopted specific statutes regarding equine (horse) activities as they recognize… that persons who participate in or observe equine activities may incur injuries as a result of the numerous inherent risks involved in such activities. The legislature also finds that the state and its citizens derive numerous personal and economic benefits from such activities. It is the purpose of the legislature to encourage owners, trainers, operators and promoters to sponsor or engage in equine activities by providing that no person shall recover for injuries resulting from the risks related to the behavior of equine animals while engaged in any equine activities.
Your state, Wyoming, has a specific statue regarding the liability which severely limits the rights of recovery from those who allege that they have sustained injury as a result of the equine activity.
The full Statute is here, under Wyoming , TITLE 1. CODE OF CIVIL PROCEDURE. CHAPTER 1. GENERAL PROVISIONS AS TO CIVIL ACTIONS. 1-1-122 -123
But ,The Michigan State University Center for Animal Law states that essentially, the Wyoming equine liability provisions immunize equine professionals by declaring that... those who engage in equine activities or any recreational activities assume the inherent risks in the sport or recreational opportunity. However, actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.
Therefore, if you ride or jump a horse and get hurt, you are probably not going to be able to recover from the animal owner or property owner, unless there is some specific negligence that can be attributed to those individuals.
If you are a horse owner, this added statutory protection can be very important.
As always, consult your local attorney and in this case, probably your insurance agent, before you act.
But, many have found that horses makes great pets and are wonderful source of recreation, for you and your children.
Midwestern Pet Owners Need Your Help
The Mission Statement of the American Kennel Club is:
"The American Kennel Club is dedicated to upholding the integrity of its Registry, promoting the sport of purebred dogs and breeding for type and function. Founded in 1884, the AKC® and its affiliated organizations advocate for the purebred dog as a family companion, advance canine health and well-being, work to protect the rights of all dog owners and promote responsible dog ownership."
In the wake of the disastrous torrential rains and flooding in the Midwest, the AKC is moving to assist local pet owners and their animals with temporary shelters and relief.
According to the AKC ,
"In the wake of recent flooding in Iowa, the American Kennel Club® and AKC Companion Animal Recovery have donated much-needed supplies to temporary shelters housing displaced pets and are working closely with area officials to offer assistance and coordinate volunteers.
Reaching out to local AKC club members in the affected areas, AKC and AKC CAR have been able to assess needs and coordinate several shipments of crates, portable kennels, bowls, leashes, collars, harnesses, food, and other supplies that will help volunteers care for the hundreds of companion animals now located at two major temporary shelters - Kirkwood Community College in Cedar Rapids and the Johnson County 4-H Fairgrounds in Iowa City.
The AKC has been working closely with Scot Northern, President of the Cedar Rapids Kennel Association and Mark Shearer, Iowa Department of Agriculture Homeland Security and Veterinary Response Coordinator. Both men are working with the AKC to facilitate the immediate fulfillment of supplies to facilities with needs.
"As people were being evacuated near the river people began to wonder where they were going to take their pets," Northern recounted. "I heard about the shelters being set up and immediately contacted the AKC and AKC CAR, which gladly helped to supply the shelters. I'm also so proud of my club members, many of whom offered to help others in need, even while being evacuated themselves."
"Since last week we have been contacting AKC clubs in the affected areas as well as local disaster officials in order to provide assistance for the benefit of any dog or companion animal displaced by the floods," AKC President Dennis B. Sprung said. "We are able to offer assistance with the help of our friends at Dog.com and Jewett-Cameron and with generous donations from individuals and clubs including the Cedar Rapids Kennel Association, New England Dog Training Club and Greater Kingsport (TN) Kennel Club. We are thankful for the outpouring of support."
"AKC and AKC CAR continue our outreach to officers of AKC affiliated clubs, humane society and animal control shelters and other organizations to identify affected and potentially affected disaster areas regarding dogs and their owners," said Tom Sharp, VP and CEO of AKC CAR. "By being proactive before flood waters rise we can let potential temporary shelter coordinators know we are here to help should people and their pets need to be evacuated. This outreach has included the Missouri Humane Society in case flood waters continue to rise."
Should dog clubs, shelters or individuals need disaster assistance or hear of those in need please contact Director of Club Communications Lisa Peterson at lxp@akc.org or or AKC President and CEO Dennis Sprung at or dbs@akc.org."
If you can help with time, money or resources, you should…
Living in Hurricane prone Florida, I can attest that no one is immune from natural catastrophes.
No Will in North Dakota
Jon Stady, North Dakota
Jon, unless you have provided for Caroline in your will or a Pet Trust, statutorily or otherwise, you may have concerns. In most states, generally speaking, companion animals are treated exactly like chattel or personal property when you die. You therefore need to look to the laws of your state to see exactly who would receive your assets if you were to die without a will (intestate).
In North Dakota, the statues are found here;
"CHAPTER 30.1-04 INTESTATE SUCCESSION
30.1-04-01. (2-101) Intestate estate.
1. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in this title, except as modified by the decedent's will.
2. A decedent, by will, may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed the intestate share.
30.1-04-02. (2-102) Share of spouse. The intestate share of a decedent's surviving spouse is:
1. The entire intestate estate if:
a. No descendant or parent of the decedent survives the decedent; or
b. All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
2. The first two hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
3. The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.
4. The first one hundred thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
30.1-04-03. (2-103) Share of heirs other than surviving spouse. Any part of the intestate estate not passing to the decedent's surviving spouse under section 30.1-04-02, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
1. To the decedent's descendants by representation.
2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent.
3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation.
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendant's taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
30.1-04-03.1. Individuals related to decedent through two lines. An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share…
30.1-04-05. (2-105) No taker. If there is no taker under the provisions of this title, the intestate estate passes to the state for the support of the common schools and an action for the recovery of such property and to reduce it into the possession of the state or for its sale and conveyance may be brought by the attorney general or by the state's attorney in the district court of the county in which the property is situated..."
Confused, well many people think that that is exactly what the legislature intended.
In general terms, is means; to your spouse and children then your parents then more distant relatives.
In none of these are around, it goes back to the state of North Dakota.
Don’t leave Caroline to the dictates of the state. Plan for your pet now…
Pet Trusts In Ohio
Okay, I have been following your information regarding estate planning for my dog, Sir Dickerson. I live in Ohio and have not heard anything about estate planning in my state. Do you have any information to help me in this area? Thanks.
Judy Piqua, Ohio
Judy, although somewhat late to the party, since January of 2007, Ohio has had Pet Trust legislation.
We turned to the Ohio State Bar Association for more information in this matter. According to Cleveland attorney, Marc L. Stolarsky, the following question and answers will provide some guidance for you in this area:
"Q.: Is there some kind of legal device I can use to make sure my pet is cared for after I’m gone?
A.: Yes. House Bill 416 has been passed by the Ohio legislature and signed into law. Effective January 1, 2007, Ohio Trust Code (O.R.C.) Section 5804.08 allows you to create a trust specifically for the care of your pet.
Q.: Does the law cover all types of pets, or only dogs and cats?
A.: The law covers all animals, including dogs, cats, and even your pet tarantula if you choose to have one. However, the law covers only animals that were living when the person who created the trust (called the settler or grantor) was still alive. Also, the trust is effective for no longer than the duration of the lives of the animals it names.
Q.: Why didn’t Ohio law allow for pet trusts before now?
A.: Historically, pet trusts were invalid for two reasons. First, there was no human beneficiary who could be identified in definite and certain terms to enforce the trust. Second, the rule against perpetuities (a legal doctrine that was designed to prevent property ownership from being tied up for unreasonably long periods) requires a human “life-in-being” (the life of a person who can affect the vesting of the property interest) against which to measure the duration of the trust. Under the 2007 law, a pet trust is valid in its own right and is no longer considered an “honorary” trust. This means that the trustee no longer has the option of whether or not to enforce the pet trust. The trustee must administer the trust and make distributions for the benefit of the pet, or the court will appoint a successor trustee. In the past, trustees have sometimes taken money provided through honorary trusts that was intended to be used for the care of pets, and used it for other purposes, instead.
Q.: How does a pet trust work?
A.: A pet trust must be created for the continued care and maintenance of a particular animal. The trust must be funded with some amount of money or property, and a trustee must be designated to administer the trust. Although a pet trust offers a level of protection for the pet that exceeds the sort of protection that was available through the use of honorary trusts, there are limitations. For example, the court has the authority to reduce the amount of caretaking funds to an amount it deems is reasonable for the care of the pet. When creating such a trust, it is wise to name a person who would be willing and able, if necessary, to step forward to bring a legal action against the trust’s caretaker-trustee, should the trustee fail to honor the trust. The 2007 law does not change in any way O.R.C. Section 1721.12, which permits cemeteries to hold property in trust for the maintenance of animal gravesites.
Q.: What steps should I take if I want to prepare a trust for my pet?
A.: To create a workable pet trust, you should do the following:
• Select a trustee to administer the trust.
• Select a primary as well as a secondary caregiver.
• Prevent fraud by protecting your pet’s identity (for example, by inserting a microchip into your pet’s body, to provide proof that the animal named in the trust is actually the beneficiary. In one case, an unscrupulous caregiver replaced a deceased cat with one cat after another for 30 years.
• Put pet care instructions, such as food preferences and exercise routine, in writing.
• Identify any health problems, medication or treatments, and a schedule of veterinary visits.
• Require the trustee to make regular inspections.
• Provide sufficient resources to cover pet care expenses, and specify how funds should be distributed (e.g., annually, quarterly, bi-monthly). Do not invite a court challenge to your trust by over-funding it.
• Provide the funding necessary to administer the estate.
• Specify how any funds remaining after the animal’s death should be used.
• State how the animal should be treated after its death (e.g, burial, cremation, etc.). "
Ohio is now in the majority of states that recognize Statutory Pet Trusts.
Contact you local attorney for additional assistance and prepare to plan for the future for Sir Dickerson.
Pet Cemetery Being Unearthed
We have written about some of the possible avenues that you might ponder when the opposite is possible and your pet dies before you. You can check here, here, here and here.
Now, imagine the plight of a number of owners of deceased pets, who chose to place their beloved friend in a pet cemetery, only now to find that their eternal place of rest is not so infinite.
It seems that a former cemetery in Cape Coral, Florida is now being dug up to provide for new development and the distressed owners have few options.
You can see the entire story in the Fort Myers New Press .
Unfortunately, this is one of those situations where owners, who obviously loved their pets attempted to plan for their future care and those plans were thwarted by circumstances entirely beyond their foreseeability or control.
Remember The Guidelines For Your Pet Trust
If that amount is unreasonable or unrealistic, the Trust may be challenged. The larger the amount left for your pet, the higher the percentage of a challenge. Especially, by a disgruntled relative.
Many of you will recall that hotel heiress, Leona Helmsley, who died last year, left a $12 million Trust to her 9 year old Maltese, Trouble.
Well, Trouble, who now lives in Florida, has trouble now!
A New York Judge and the State Attorney General have signed off an agreement that reduces Trouble’s share to $2 million.
Not all of the facts have been revealed as to agreement of the parties or their reasoning, but certainly some of the heirs that were omitted from Helmsley’s will stand to see a substantial increase in their fortunes.
It appears as though the Trustee of Trouble was not opposed to the reduction of the amount.
You can see the update on the story here.
Remember these common issues when establishing you Pet Trust:
The appointment of the trustee and successor;
The appointment of the caretaker and successor;
The need to adequately identify your pets in order to prevent fraud;
A description of your pet’s standard of living and care in detail;
A requirement that the trustee ensures the caregiver is providing the pet with regular, thorough veterinary check-ups;
The need to determine the amount of cash or assets needed to adequately cover the expenses for your pet’s care;
The need to determine the amount of cash or assets needed to adequately cover the expenses of administering the pet trust;
Choosing a beneficiary who will receive any remaining funds that were not used by the pet trust; and
Providing directions for your pet’s burial or cremation.
But, do not forget to…establish your Pet Trust.
Know Anything About Turtles?
Most of our information on this site deals with the daily care and long term planning for your pets, although in truth most of our information deals with cats and dogs.
I was recently asked if we could focus on other pets, and since I do not have any personal knowledge with these other types of pets, as usual, I looked for help.
On exoticpets.about.com, I found the following useful background on, of all things, turtles as pets.
"North American box turtles are mainly terrestrial turtles, although they do spend some time in shallow water (Asian box turtles tend to be a bit more aquatic). Compared to aquatic turtles such as red eared sliders, they are more challenging and complex pets, and are not the best choice for beginning turtle owners. With a potential life span of up to 100 years, these turtles obviously require a long term commitment (however, the average life span of captive box turtles is probably closer to only 40-50 years).
Picking a Healthy Turtle
Try to find a captive bred turtle, as wild caught turtles tend to be stressed, dehydrated, and prone to disease as a result of their stress and environment during capture/transport. In addition, support of the wild catch/pet trade in box turtles may further threaten their numbers in the wild (and taking in native turtles is illegal in many states). An alternate source is shelters or rescue groups.
Find a turtle in the late spring or summer months; it is best to avoid purchasing a box turtle during the fall or winter when it should be hibernating. Make sure the turtle feels "solid" (i.e. not like an empty shell), and has clear eyes and nostrils and a firm, solid shell, and no swellings. It is wise to get a stool sample checked by a veterinarian and deal with any parasites, and take the turtle to a vet immediately if it is not eating shortly after arriving home (it may need rehydration). Also keep in mind that box turtles, like other reptiles, can carry Salmonella so careful hygiene is required during handling of turtles and cleaning their enclosures.
Housing Options
A well designed outdoor pen, providing appropriate substrate, humidity, access to water, and protection form predators will work well in appropriate climates (generally speaking, this is probably limited to areas where box turtles are indigenous). In fact, most box turtles will only thrive if kept outdoors, for at least part of the year. If kept indoors, the utmost care must be taken to provide an appropriately sized enclosure with provisions for heat, humidity, and lighting. An indoor set up will require considerable space and requires good landscaping, a heat source, a basking light and a UVA/UVB lamp (important for Vitamin D and calcium metabolism).
Feeding
A varied diet must also be provided. Box turtles are omnivores, but different species and different aged turtles tend to have preferences for either more animal protein or more vegetation in their diet. For example, in some species of box turtle are more carnivorous than adults. They must be feed a variety of foods from both groups including plenty of fresh vegetables and fruits, insects, low fat meats, pinky mice, and other foods.
Hibernation
North American box turtles hibernate and this complicates their husbandry somewhat. Appropriate conditions must be provided sheets for hibernation with a warning that turtles that are not in good condition/health should not be allowed to hibernate as they will not have the reserves and strength to survive. Do everything possible to ensure good health prior to the time of year that hibernation should begin. For unhealthy animals a period of hibernation, when all bodily functions slow considerably, hibernation will only make health problems worse, if not kill the turtle.
More Resources
There are several different species of box turtle, and each has variations in their housing and dietary needs. There are numerous excellent resources available with details on housing and feeding (some aimed at indoor keeping, others at outdoors). Rather than detailing the care of different species here, I highly recommend researching these turtles very well before deciding on them as a pet."
Now, I have more pet turtle knowledge that I believe that I need, but maybe it will be helpful to you.
Think out of the box, get a turtle for a pet.
Can I Keep My Dog? Part II
Saturday, we received this question:
"My brother Rick has some learning disabilities that have been diagnosed as an emotional disability. Because of this condition, he can only maintain a minimum wage job, but still takes care of and loves his dog. Now, his landlord told him to get rid of his dog. Is there anything I can do to help him?"
Name withheld Havelock, Iowa
We looked to the Michigan State University College of Law, Animal Legal & Historical Center for an answer and posted part of the response here. Today we will conclude their analysis of the problem.
"In addition, under Sec. 504, the tenant must be "otherwise qualified" to receive the benefit, the tenant must be denied the benefit solely because of the disability, and the program must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas. Lastly, only housing authorities that receive money from the federal government, such as public housing projects, are subject to Sec. 504 provisions.
Unlike Sec. 504, the FHAA applies to both public and private housing. Under the FHAA, in addition to establishing a qualifying disability, the tenant must also establish that the landlord knew of the tenant's disability, waiving the "no pets" policy was necessary to allow the tenant to equally use and enjoy the dwelling, and the landlord refused to waive the "no pets" policy. Also, the tenant must request a waiver of the "no pets" policy from the landlord, explaining that he or she has a mental disability and needs the emotional support animal to lessen the effects of the disability. A note from a physician to this effect is often used to inform the landlord of the disability and request the accommodation. Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link between the animal and the disability.
Under both statutes, a mentally disabled person must meet two standards when arguing a waiver of a "no pets" provision as a reasonable accommodation: (1) the accommodation must facilitate the disabled person's ability to function; and (2) the accommodation must pass a cost-benefit balancing test that takes both parties' needs into account. The former can be established by evidence showing that the handicap requires the companionship of the animal, the disabled person has an emotional and psychological dependence on the animal, or that the animal lessens the effects of the disability by providing companionship. The supporting evidence often comes from a medical professional. The latter requires an analysis of the benefits to the tenant as compared to the burdens placed on the landlord. Generally, there are minimal burdens placed on a landlord if required to waive a "no pets" policy. Especially because the number of mentally disabled persons who can qualify for waiver of a "no pets" provision is small, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy because of extreme burdens. In addition, there must be no other reasonable alternatives to lessen the effects of the disability, other than the animal.
Courts have not restricted the types of species that qualify as reasonable accommodations. Examples of species that have been allowed as reasonable accommodations include dogs, birds, and cats. Also, courts have held that animals do not need to have professional training or be certified as an emotional support animal. Evidence establishing the nexus between the disability and the animal is sufficient.
Even if a person qualifies for a reasonable accommodation under the statutes, a landlord does not have to waive a "no pets" policy if doing so would cause a great financial or administrative burden, if a "no pets" rule is a fundamental part of the housing program, or if the disabled person is not able to follow general rules of tenancy. However, to date, a landlord has not been able to refuse waiving a "no pets" policy to a qualifying mentally disabled person because of any of the above reasons.
In addition, if a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the tenant does not qualify under the statutes and the landlord does not have to allow the tenant in housing or waive a "no pets" policy.
Given the known benefits of emotional support animals for persons with mental disabilities, it is important for the legal community to assist mentally disabled persons so that they are aware of the their rights and ensure that those rights are enforced. "
As always, contact your local attorney for specific advice, but under the right set of circumstances. your brother may be allowed to keep his dog.
Good luck to your brother and his dog.
Can I Keep My Dog? Part I
"My brother Rick has some learning disabilities that have been diagnosed as an emotional disability. Because of this condition, he can only maintain a minimum wage job, but still takes care of and loves his dog. Now, his landlord told him to get rid of his dog. Is there anything I can do to help him?"
Name withheld Havelock, Iowa
Michigan State University College of Law, Animal Legal & Historical Center, has an excellent website full of legal information. We use their reference material quite frequently. They have an answer for a question that is almost identical to the one you posed and we defer to their knowledge.
"Medical professionals have long recognized that animals can assist persons with physical disabilities including blind or deaf persons. Recently, medical professionals have discovered the profound effects that animals can provide for persons with mental and emotional disabilities. When provided with an emotional support animal, depressed patients show decreased depression and children with severe attention deficit hyperactivity disorder show an increased attention span.
Despite this, the answer to the above question depends on whether a person is receiving federally subsidized housing or whether he or she has a documented disability to get a private landlord to waive a "no pets" policy. Unfortunately, if a person rents housing, landlords are given the right to restrict a tenant�s ability to keep an animal in his or her rental unit. However, federal statutes, including Section 504 of the Rehabilitation Act of 1973 ("Sec. 504") and the Federal Fair Housing Amendments Act of 1988 ("FHAA"), require that persons with disabilities have an equal right to housing as those without disabilities. It is illegal for a landlord to deny housing to a person with a disability because that person, or someone associated with that person, has a mental or physical disability. Under the statutes, disabled persons are also entitled to reasonable accommodations so that they can equally use and enjoy the dwelling. Courts have held that a waiver of a "no pets" provision is a reasonable accommodation for a mentally disabled person who needs an emotional support animal to lessen the effects of the disability. If a landlord fails to allow an emotional support animal in rental housing for a person who qualifies under the statutes, the landlord violates the statutes and could owe damages to the disabled tenant.
To qualify under both statutes, the tenant must establish that he or she has a qualifying disability. Mental disabilities, such as mental retardation, mental illness, and special learning disabilities, are qualifying disabilities under both statutes. Also, the mental impairment must affect the person's ability to perform major life activities such as caring for one's self, walking, or working."
We will provide the conclusion of this analysis tomorrow...
Tennessee Statute Helps Pet Owners
Bobby Joe Waynesboro, Tennessee
Bobby Joe, obviously you should consult an attorney in your area to understand fully your legal rights.
However, generally speaking, Tennessee has one of the few Statutes that specifically give a possible right of recovery for pet owners.
Tennessee Code 44-17-403. Death of pet caused by negligent act of another — Damages, states:
(a) (1) If a person's pet is killed or sustains injuries that result in death caused by the unlawful and intentional, or negligent, act of another or the animal of another, the trier of fact may find the individual causing the death or the owner of the animal causing the death liable for up to five thousand dollars ($5,000) in noneconomic damages; provided, that if the death is caused by the negligent act of another, the death or fatal injury must occur on the property of the deceased pet's owner or caretaker, or while under the control and supervision of the deceased pet's owner or caretaker.
(2) If an unlawful act resulted in the death or permanent disability of a person's guide dog, then the value of the guide dog shall include, but shall not necessarily be limited to, both the cost of the guide dog as well as the cost of any specialized training the guide dog received.
(b) As used in this section, “pet” means any domesticated dog or cat normally maintained in or near the household of its owner.
(c) Limits for noneconomic damages set out in subsection (a) shall not apply to causes of action for intentional infliction of emotional distress or any other civil action other than the direct and sole loss of a pet.
(d) Noneconomic damages awarded pursuant to this section shall be limited to compensation for the loss of the reasonably expected society, companionship, love and affection of the pet.
(e) This section shall not apply to any not-for-profit entity or governmental agency, or its employees, negligently causing the death of a pet while acting on the behalf of public health or animal welfare; to any killing of a dog that has been or was killing or worrying livestock as in § 44-17-203; nor shall this section be construed to authorize any award of noneconomic damages in an action for professional negligence against a licensed veterinarian.
Any case involving a tort is going to be fact sensitive and ultimately up to a Judge or a jury to decide as to the liability and then, if any, the amount of money damages that you may recover.
At least, in your state, you have some statutory authority to back you up.
Contact your attorney.
Sorry about Blue, hope he gets better soon.
Dog Rules For Life
This was passed on to me recently from a friend.
She did not know the author nor do I.
Generally, I am not the sappy type, but this just struck me as being very true.
If anyone knows the author please advise and we will certainly give them their due credit.
Remember, if a dog was the teacher you would learn things like:
When loved ones come home, always run to greet them.
Never pass up the opportunity to go for a joyride.
Allow the experience of fresh air and the wind in your face to be
pure Ecstasy.
Take naps.
Stretch before rising.
Run, romp, and play daily.
Thrive on attention and let people touch you.
Avoid biting when a simple growl will do.
On warm days, stop to lie on your back on the grass.
On hot days, drink lots of water and lie under a shady tree.
When you're happy, dance around and wag your entire body.
Delight in the simple joy of a long walk.
Be loyal.
Never pretend to be something you're not.
If what you want lies buried, dig until you find it. Persevere.
When someone is having a bad day, be silent, sit close by and
nuzzle them gently.
Love unconditionally and forgive frequently.
If this lifestyle is good enough for our pets, it should be good for the owners as well.
Gum is a Sticky Issue For Your Dog
I received this posting from a friend who is also the owner of a King Charles Cavalier.
"I know that many of you already are well aware of the risks of xylitol
(an artificial sweetener used in diabetic foods, mints, chewing gum,
sugar free pudding, jello, etc.) when it comes to our dogs, but
thought this could serve as a reminder... I almost lost 2 of my girls
last night...
I had a friend over yesterday evening, and (without thinking) she put
her purse on the ground, and we ended up chatting in another room for
an hour or two. When we returned to the room in which she placed her
purse, I noticed, to my absolute horror, a *shredded* gum box
torn to oblivion all over the floor.
I am well aware of the risks of xylitol ingestion with dogs (as little
as 2 pieces of gum can cause death in a 20 lb dog). I immediately
grabbed my dogs and smelled their breath - the only one with the minty
fresh breath... Izzy, my 10 lb female tri puppy. In a panic, I
accosted my friend as to EXACTLY how much gum she had left in the
package - she thought 3 or 4 pieces. Oh my god.
I immediately induced vomiting (with hydrogen peroxide) and Izzy
vomited violently 4 times - very minty smelling vomit, with small
chunks of the gum. I then rushed both her and Darby (my 3 yo Bl girl -
the only other one with access at the time - she didn't have minty
breath, but I wasn't about to take any chances) to UC Davis for blood
glucose monitoring and treatment.
By the way, for those who don't know, xylitol causes mass insulin
release in dogs, leading to severe, acute hypoglycemia. Dogs can show
symptoms in as little as 20 minutes, or as late as 12 hours: ataxia
(staggering gait), depression, lethargy, confusion, seizures & death.
Even if they survive the hypoglycemia, many dogs experience liver
failure and death 3-4 days later. There is no antidote or "cure." Your
only option is to try and stay ahead of it by giving mass amounts of
glucose to combat the effects of the xylitol until it finally
metabolizes out of their system in 12-24 hours. Also, to check liver
enzymes a few days later to see if your dog is experiencing fatal
liver failure - no real cure or treatment, just supportive care and
prayers. "
I have to admit that I had never heard of this, so I did a little digging.
The American Veterinary Medical Association (AVMA) has posted the following warning regarding xylitol.
"If you think it's no big deal that your dog just ate some sugar-free gum or a cookie or two, think again. You may want to make an immediate trip to your veterinarian. While veterinarians have suspected that the sugar substitute xylitol can make dogs sick, there is now further clinical evidence of an association between the product and possible liver failure in dogs…Xylitol, a sweetener found in many sugar-free chewing gums, candies, baked goods and toothpastes, is a naturally occurring ingredient that may have far-reaching negative health effects on dogs....
"Not all things that are natural are safe," said veterinary toxicologist Sharon Gwaltney-Brant, who along with veterinarian Eric K. Dunayer co-authored the report. "There are plenty of things in the environment that are toxic to pets."
While not all pets become ill after eating xylitol, Dr. Gwaltney-Brant said the public—and especially dog owners—needs to be aware of the potential dangers. She added that pet owners should make sure that products containing xylitol are kept away from dogs. If an owner suspects that their dog has eaten products containing xylitol, they should contact their veterinarian immediately.
"The potential for severe illness is very high," she said. "People don't think sugar-free gum can kill their dog. I didn't before I got into this. But this is something people should be aware of."
I have also found some data that even the small amount in a breath mint can be harmful to you dog.
You are the owner. You are responsible
Look after your pets.
Canadian Court Recognizes the Value of Your Pet
We have discussed on numerous occasions, here and here that most courts view your pet, not as a friend, a family member or companion, but simply as another piece of personal property.
Perhaps our neighbors to the North have a better idea.
According to the Canadian Veterinary Medical Association the case of Ferguson v. Birchmount Boarding Kennels Ltd. (2006), 79 O.R. (3d) 681 (Div. Ct.) may lead the way into a new arena of legal thinking.
In Ferguson;
"the plaintiffs boarded their dog at a kennel while they were on vacation. The dog escaped from the enclosed play area by squeezing between 2 boards in a fence, and was never found. Mrs. Ferguson was emotionally distraught when she heard the news. She suffered from insomnia and nightmares, which required her to take time off work. The Fergusons sued the kennel for damages. The court held that the kennel had not taken reasonable steps to ensure that the fence was secure. Its negligence amounted to a fundamental breach of the boarding contract, such that the kennel could not rely on a waiver of liability that the owners had signed. The Fergusons were awarded $2527, which included $1417 in general damages for pain and suffering associated with the loss of the dog..."
Upon appeal, the higher Court agreed with the lower one and stated;
"that a pet is not considered in law to be the owner’s property (or chattel), so as to preclude an award for pain and suffering upon its loss. Mental distress, if proven to exist, can be compensated for by an award of damages..."
Although this one case stands in opposition to a long line of decisions, perhaps it is the beginning of the recognition that pets are truly not personal property to their owners.
Maybe more U.S. courts will follow this lead of evaluating your pets.
Talking With Your Dog
Unfortunately, although you may constantly talk with your dog and even ask them questions, it is rare that you will receive an answer or response.
Are they hungry, do they need to go outside, are they feeling okay?
We can only guess at what they need or desire.
In my opinion, any tips or help that we can receive to try to take care of them are always welcome.
The following aids are from dogage.com:
General Health
• Brush teeth three times a week and have chew toys or biscuits for additional teeth cleaning
• Spay or neuter to help improve a dog's disposition, prevent unwanted behaviors and reduce the chance for infections, tumors and cancers
• Maintain a Home Health check-list and examine coat, ribs, eyes, ears and nose regularly
• Groom regularly by brushing, bathing and clipping according to breed, size and your dog's indoor or outdoor habits
• Post emergency numbers and keep and first-aid supplies on hand such as, gauze, bandages, eyewash, tweezers, cold pack, thermometer, towel and gloves
Medical History
• Maintain regular veterinarian visits for routine health check-ups including vaccinations and preventative care measures
• Learn about the breed of your dog for any specific diseases or body conditions
• Look for any change in behavior or eating habits that might signal a medical problem
• Keep a log of vaccinations and medical problems
Food/Nutrition
• Monitor diet and caloric intake by measuring food and limiting treats
• Avoid human food – it can upset a dog's stomach and diet
• Talk to your veterinarian about nutritional requirements for age or breed specific food
• Provide fresh, clean water daily
Exercise
• Exercise pets regularly, as approved by a veterinarian
• Be aware of the weather, monitor temperatures to determine the best time of day to exercise your dog outside
• Select toys that are safe and stimulating for your pet, such as hard rubber balls or raw hides
Social Health
• Stay in command – training a dog to respond to direction makes the pet and owner relationship easier and safer
• Practice safety in the yard, on walks and trips by using barriers, leashes, carriers and proper identification
• Give your dog a clean and comfortable sleeping area
• Socialize your dog around other pets and people to help him learn to adjust to changes in his environment
These tips provide a good outline for you to follow.
Apply these guidelines to the care of your pet.
Dog or not.
If they could, they would thank you!
Can A Pet Trustee Receive Payment?
I saw your recent explanation of the duties of a Trustee for a Pet Trust. I have been asked by my brother Rex to serve as the trustee for his three dogs, Bingo, Bango and Bongo (very cute eh!) If I agree to do this, can I get paid for my time?
Zachary Palm Island, Florida
Zachary, unless the Trust Instrument has some type of specific prohibition, you are entitled to "reasonable compensation" for your services as a Trustee.
What is reasonable compensation?
That is a good question and is usually based upon an hourly rate or a percentage fee of the total amount of the Trust.
Bank trust departments will customarily charge an annual fee equal to approximately one percent (1%) of the current value of the trust's assets. They may charge a lower fee, but then add on transaction charges for every action.
If the Trust Instrument provides for specific compensation, you should follow the dictates of that document. If you feel that the compensation provided for in the trust is unreasonable or unduly burdensome, you can either resign as the Trustee or petition the court for additional compensation.
The trustee’s fee is normally paid on a quarterly basis. Remember, compensation (but not expense reimbursements) that you receive as a Trustee, is taxable to you, usually as self employment income.
Some Trustees want to waive the compensation because of their love for the family or animals involved. If you want to do this, make sure that you consult with your accountant about how to document this compensation in the correct manner. Otherwise you may have taxable income imputed to you even though you do not actually receive it.
The duties and responsibilities of a Pet Trustee are serious and legally binding. Receiving reasonable compensation for the performance of this role is fair and anticipated.
What Are the Duties of a Pet Trustee?
I want to appoint my cousin Sully as the Trustee for my Pet Trust. He said that he would consider doing it, but wanted to know exactly what that means. How do I explain this to him?
Bianca Pawley’s Island , South Carolina
Bianca, generally the Trustee is considered to have four major areas of duties or responsibilities.
He or she must collect all of the assets that belong to the trust, manage and invest the trust assets, pay all of the applicable debts and taxes as required in the trust document and then distribute the remaining trust assets to the designated beneficiaries as set out in the Trust.
The collection of the assets should be a fairly simple task in that most Pet Trusts have specific source of easily identifiable funds to be placed into the Trust.
The investments must be in a prudent and reasonable manner, with no self-dealings or commingling (mixing) of personal and trust funds.
Accurate records of all income and expense of the Trust funds must be kept by the Trustee.
The Trustee is usually empowered to hire legal counsel or accounting help to assist in the legal and/or financial affairs of the Trust, to be sure that they are in full compliance with state and federal rules and regulations.
When the Trust ends, the remaining assets are turned over to the named beneficiary and the duties of the Trustee are ended.
Tell your cousin Sully, there is no reason for him not to help you and your pet with your estate planning.
Oklahoma is Not Okay for Pet Trusts
Although previous attempts for a Statutory Pet Trust have been tried in the Oklahoma legislature, to date they have been unsuccessful.
This is the text of the previously proposed bill.
"TRUST FOR CARE OF ANIMAL
A. A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.
B. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animals may request the court to appoint a person to enforce the trust or to remove a person appointed.
C. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use, considering the current and future needs of the animals. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest. Notwithstanding the foregoing, the settlor may specifically override this provision by specific reference and prevent the distribution of property in excess of the intended use until all the animals are deceased or as otherwise provided for by the terms of the trust."
Because there is no Statutory Pet Trust, a trust that is set up for a pet in Oklahoma would probably violate the Rule Against Perpetuities (RAP).
This arcane law is as convoluted as any laymen or attorney can imagine. But, essentially it was established to prohibit property from being held perpetually in trust. So, with some twists and variations, RAP voids any agreement which does not end twenty-one years after a life in being, or one generation from lives presently in being plus twenty-one years.
Still confused? Don’t worry thousands of pages of legal arguments and interpretations have been written on this rule.
Currently under Oklahoma law, as in most states, domestic animals and tamed wild animals are personal property Therefore, the animals are unable to own other property or become a beneficiary under a will.
We are unaware of any court cases on the Appellate level in Oklahoma that have directly ruled on these issues.
Although given the current trend throughout the country, one could assume that the Court would try to lend credence and legal standing to this estate planning documentation.
However, they would still have to deal with the time issue of the RAP period and the court would likely limit the trust's duration to the twenty-one-year perpetuities period.
The simple solution is for Oklahoma to get on board with the majority of the country and pass a Statutory Pet Trust.
Summertime Heating Up for Your Pets
We have recently provided information for emergency planning and actions for you and your pets, here, here and here.
Summertime has hit and is heating up, particularly if you live in a climate like we have in southwest Florida.
Special precautions need to be taken by you for the protection of your pets. Some helpful tips are provided below by the American Society for The Prevention of Cruelty to Animals.
"- A visit to the veterinarian for a spring or early summer check-up is a must; add to that a test for heartworm, if your dog isn't on year-round preventive medication. Do parasites bug your animal companions? Ask your doctor to recommend a safe, effective flea and tick control program.
- Never leave your pet alone in a vehicle—hyperthermia can be fatal. Even with the windows open, a parked automobile can quickly become a furnace in no time. Parking in the shade offers little protection, as the sun shifts during the day.
- Always carry a gallon thermos filled with cold, fresh water when traveling with your pet.
- The right time for playtime is in the cool of the early morning or evening, but never after a meal or when the weather is humid.
- Street smarts: When the temperature is very high, don’t let your dog standing on hot asphalt. His or her body can heat up quickly, and sensitive paw pads can burn. Keep walks during these times to a minimum.
- A day at the beach is a no-no, unless you can guarantee a shaded spot and plenty of fresh water for your companion. Salty dogs should be rinsed off after a dip in the ocean.
- Provide fresh water and plenty of shade for animals kept outdoors; a properly constructed doghouse serves best. Bring your dog or cat inside during the heat of the day to rest in a cool part of the house.
- Be especially sensitive to older and overweight animals in hot weather. Brachycephalic or snub-nosed dogs such as bulldogs, pugs, Boston terriers, Lhasa apsos and shih tzus, as well as those with heart or lung diseases, should be kept cool in air-conditioned rooms as much as possible.
- When walking your dog, steer clear of areas that you suspect have been sprayed with insecticides or other chemicals. And please be alert for coolant or other automotive fluid leaking from your vehicle. Animals are attracted to the sweet taste, and ingesting just a small amount can be fatal.
- Good grooming can stave off summer skin problems, especially for dogs with heavy coats. Shaving the hair to a one-inch length—never down to the skin, please, which robs Rover of protection from the sun—helps prevent overheating. Cats should be brushed often.
- Do not apply any sunscreen or insect repellent product to your pet that is not labeled specifically for use on animals. Ingestion of sunscreen products can result in drooling, diarrhea, excessive thirst and lethargy. The misuse of insect repellent that contains DEET can lead to neurological problems.
- Having a backyard barbecue? Always keep matches, lighter fluid, citronella candles and insect coils out of pets' reach.
- Please make sure that there are no open, unscreened windows or doors in your home through which animals can fall or jump.
- Stay alert for signs of overheating in pets, which include excessive panting and drooling and mild weakness, along with an elevated body temperature."
Plan appropriately for summer temperatures and conditions for your pets. You both want to enjoy the summer and the outdoors.
Changes Coming to California Pet Trust?
Although California has recognized some form of a Pet Trust since 1991, the enforceability has been minimal and it has been an “honorary trust.”
That may soon change.
A recently proposed amendment is moving forward in the California legislature to amend Section 15212 of the Probate Code
The Legislative Counsel’s Digest states the following on the proposed changes;
"Existing law provides that a trust for the care of a designated domestic or pet animal may be performed by the trustee for the life of the animal, whether or not there is a beneficiary who can seek enforcement or termination of the trust and whether or not the terms of the trust contemplate a longer duration. ..
"This bill would repeal the provisions regarding domestic or pet animal trusts and would provide instead that a trust for the care of a designated domestic or pet animal is for a lawful noncharitable purpose and terminates when no…designated animal is living on the date of the…settlor’s death…unless otherwise provided in the trust …The bill would require a court to liberally construe a pet trust to bring it within the bill's provisions, to presume against an interpretation that would render the disposition a mere request or an attempt to honor the pet, and to carry out the general intent of the trust. The bill would provide an order of disposition of trust property upon termination of the trust and would provide authority for the court to name a trustee and to transfer trust property, as specified. This bill would permit…any person interested in the welfare of the pet animal or any nonprofit charitable organization…that has as its principal activity…the care of animals to… petition the court regarding the trust, as specified…"
In addition, the bill would provide a process for an accounting of the trust, to be waived if the value of the trust assets do not exceed $40,000.00.
These are major changes in a state with a huge population and clearly show the continuing trend in recognizing the wants and needs of pet owners.
We will keep you advised as these matters move forward through the grinding legal process.
Share Your Tomb with Your Pet?
We write on numerous occasions about Statutory Pet Trusts, Powers of Attorney for your pet, Will Clauses to provide for your pet and the selection of an appropriate trustee and a caretaker.
We have even reviewed your ability to clone your pet.
There is also an additional option, at least in the State of Florida.
A change in the Florida Statutes, now allows for an additional authorized function for cemeteries.
Under Statute 497.273, the following power is provided.
"4) This chapter does not prohibit the interment or entombment of the inurned cremated animal remains of the decedent's pet or pets with the decedent's human remains or cremated human remains if:
(a) The human remains or cremated human remains are not commingled with the inurned cremated animal remains; and
(b) The interment or entombment with the inurned cremated animal remains is with the authorization of the decedent or other legally authorized person."
So, if you keep the remains of you and your pet separate and agree to the inurnment, in Florida at least, you can take your pet with you.
Estate planning for you and your pet?
Maybe, maybe not.
This is a little too much planning for me.
A Pet Trust for Your Pet Pig?
I remember reading your post that Indiana has a Statutory Pet Trust. If I have a pet other than a dog or cat, can I provide for them as well?
Doug Munster, Indiana
Doug, thanks for being a follower … we wrote here that Indiana is one of the majority of states that has a Statutory Pet trust.
It is hard to define, “what constitutes a pet.”
Generally, Indiana Code § 30-4-2-18, simply provides that;
(a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime.
There is no specific definition of “an animal” in the Statute.
However, in 1994, the city of Anderson brought a suit against Virginia Barnes and Jan Swearingen to stop the women from keeping and maintaining Swearingen's pet Vietnamese pot-belly pig, at their residence within the city limits. Barnes v. City of Anderson, Indiana 642 N.E.2d 1004 (Ind.App. 2 Dist. 1994)
At the trial, the women offered evidence that the Vietnamese pot-belly pig has been in use as an exotic pet in the United States since 1985. Swearingen told the court that she kept the pig in her home and backyard and walked the pig with a leash. Her pet weighed between 125 and 150 pounds and ate mini pig chow, dog food and drank water. The pig (named Sassy) also had her own food bowl and water dish and used a litter box.
Not persuaded, the trial court granted an injunction against the action, in essence, stating that the women were in violation of a City Ordinance by keeping livestock in a residential district.
On appeal, the Court disagreed, and stated in part:
"The term "domestic animal" is not defined in the Zoning Code; however, a definition is contained in the Anderson Animal Control Ordinance at § 91.01, which classifies pigs and other animals such as dogs, cats, and hamsters, as domestic animals. Neither party denies that Sassy is a domestic animal kept as a pet…
"The definition specifies that "domestic animals kept for farm purposes, especially those marketable animals" are livestock. Cattle, horses, sheep, goats, and ponies, the animals named in the definition as examples, are all animals used for farm purposes. As explained above, dogs, cats, and hamsters all fall under the definition of domestic animal. If the phrase "farm purposes" is not read to modify the word "raising" in the ordinance, then dogs, cats, and hamsters are livestock and are prohibited from residential districts in Anderson. The Code does not reconcile this dilemma by expressly designating the domestic animals excluded from the definition of livestock. We, thus, conclude the policy of the ordinance to be the exclusion of farming activities in the city…
"Although Sassy is a pig, and, in ordinary experience, pigs are farm animals, the parties agree that Sassy is a pet… Swearingen does not use Sassy for farm purposes and Swearingen is not planning to breed and market the pig. The wording of the zoning ordinance illustrates that the ordinance's drafters were contemplating farm animals when they enacted the legislation, not pets. The policy behind the ordinance of preventing farming in residential districts will not be furthered by the removal of Sassy…
"The zoning ordinance involved in this case, however, does not apply to the facts before us."
So, at least in this case, even a pot bellied pig can be a pet in the eyes of the Indiana law.
Plan for your pet, even if it is a Vietnamese pot-belly pig.
Plan and Stay Informed in Emergencies
Today is the final of our three part posting on planning for emergencies for your pets.
We can thank Ready America for the following tips;
Plan What You Will Do in an Emergency .
"Be prepared to assess the situation. Use whatever you have on hand to take care of yourself and ensure your pet's safety during an emergency. Depending on your circumstances and the nature of the emergency the first important decision is whether you stay put or get away. You should understand and plan for both possibilities. Use common sense and the information you are learning here to determine if there is immediate danger.
In any emergency, local authorities may or may not immediately be able to provide information on what is happening and what you should do. However, watch TV, listen to the radio or check the Internet for instructions. If you're specifically told to evacuate, shelter-in-place or seek medical treatment, do so immediately.
Create a plan to get away.
Plan how you will assemble your pets and anticipate where you will go. If you must evacuate, take your pets with you if practical. If you go to a public shelter, keep in mind your animals may not be allowed inside. Secure appropriate lodging in advance depending on the number and type of animals in your care. Consider family or friends willing to take in you and your pets in an emergency. Other options may include: a hotel or motel that takes pets or a boarding facility, such as a kennel or veterinary hosp ital that is near an evacuation facility or your family’s meeting place.
Find out before an emergency happens if any of these facilities in your area might be viable options for you and your pets.
Develop a buddy system. Plan with neighbors, friends or relatives to make sure that someone is available to care for or evacuate your pets if you are unable to do so. Talk with your pet care buddy about your evacuation plans and show them where you keep your pet's emergency supply kit. Also designate specific locations, one in your immediate neighborhood and another farther away, where you will meet in an emergency.
Talk to your pet's veterinarian about emergency planning. Discuss the types of things that you should include in your pet's emergency first aid kit. Get the names of vets or veterinary hospitals in other cities where you might need to seek temporary shelter. You should also consider talking with your veterinarian about permanent identification such as microchipping, and enrolling your pet in a recovery database. If your pet is microchipped, keeping your emergency contact information up to date and listed with a reliable recovery database is essential to your being reunited with your pet.
Gather contact information for emergency animal treatment. Make a list of contact information and addresses of area animal control agencies including the Humane Society or SPCA, and emergency veterinary hospitals. Keep one copy of these phone numbers with you and one in your pet's emergency supply kit. Obtain "Pets Inside" stickers and place them on your doors or windows, including information on the number and types of pets in your home to alert firefighters and rescue workers. Consider putting a phone number on the sticker where you could be reached in an emergency. And, if time permits, remember to write the words "Evacuated with Pets" across the stickers, should you flee with your pets.
Finally, Stay Informed.
Some of the things you can do to prepare for the unexpected, such as assembling an emergency supply kit for yourself, your family and your pets, is the same regardless of the type of emergency.
However, it's important to stay informed about what might happen and know what types of emergencies are likely to affect your region as well as emergency plans that have been established by your state and local government.
Be prepared to adapt this information to your personal circumstances and make every effort to follow instructions received from authorities on the scene. With these simple preparations, you can be ready for the unexpected. Those who take the time to prepare themselves and their pets will likely encounter less difficulty, stress and worry. Take the time now to get yourself and your pet ready.
Preparing for Your Pets Makes Sense. Get Ready Now."
We have provided extensive information for planning and executing emergency plans for your pets.
It is up to you to implement these plans.
Your are responsible for your pet.
More Emergency Planning Tips For Your Pet
We continue to provide emergency planning tips for your pet in the light of the new Hurricane season.
"Get a Pet Emergency Supply kit. Just as you do with your family think first about the basics for survival, particularly food and water. Consider two kits. In one, put everything you and your pets will need to stay where you are. The other should be a lightweight, smaller version you can take with you if you and your pets have to get away. Plus, be sure to review your kits regularly to ensure that their contents, especially foods and medicines, are fresh.
Food. Keep at least three days of food in an airtight, waterproof container.
Water. Store at least three days of water specifically for your pets in addition to water you need for yourself and your family.
Medicines and medical records. Keep an extra supply of medicines your pet takes on a regular basis in a waterproof container.
First aid kit. Talk to your veterinarian about what is most appropriate for your pet's emergency medical needs. Most kits should include cotton bandage rolls, bandage tape and scissors; antibiotic ointment; flea and tick prevention; latex gloves, isopropyl alcohol and saline solution. Include a pet first aid reference book.
Collar with tag, harness or leash. Your pet should wear a collar with its rabies tag and identification at all times. Include a backup leash, collar and tag in your pet's emergency supply kit. In addition, place copies of your pet's registration information, adoption papers, vaccination documents and medical records in a clean plastic bag or waterproof container and also add them to your kit. You should also consider talking with your veterinarian about permanent identification such as microchipping, and enrolling your pet in a recovery database."
We had previously discussed microchipping for your pets, here .
"Crate or other pet carrier. If you need to evacuate in an emergency situation take your pets and animals with you provided that it is practical to do so. In many cases, your ability to do so will be aided by having a sturdy, safe, comfortable crate or carrier ready for transporting your pet. The carrier should be large enough for your pet to stand, turn around and lie down.
Sanitation. Include pet litter and litter box if appropriate, newspapers paper towels, plastic trash bags and household chlorine bleach to provide for your pet's sanitation needs. You can use bleach as a disinfectant (dilute nine parts water to one part bleach), or in an emergency you can also use it to purify water. Use 16 drops of regular household liquid bleach per gallon of water. Do not use scented or color safe bleaches or those with added cleaners.
A picture of you and your pet together. If you become separated from your pet during an emergency, a picture of you and your pet together will help you document ownership and allow others to assist you in identifying your pet. Include detailed information about species, breed, age, sex, color and distinguishing characteristics.
Familiar items. Put favorite toys, treats or bedding in your kit. Familiar items can help reduce stress for your pet."
Plan now for potential emergencies for your and your pet.
Be prepared. Be ready.
