I was recently asked about the difference between a pet trust and the use of a will for estate planning.
A testamentary trust is one that is created in a will.
Since a will is an ambulatory instrument, in that it never is effective until the testator (the one who writes the will) actually dies, this trust will not spring to use until the pet owner is no longer around.
Additionally, a will must go through the probate process and there may well be some time delays.
This delay may cause issues for the ability of your pet caretaker to secure the means and authority to take care of your pet.
One advantage of this type of trust is that it may be less expensive than the living trust. The trust clauses can be incorporated into the will of the pet owner and thus, become an integral part of the overall estate planning process
An example of such a will clause is as follows:
...I give my cat, and any other animals that I may own at the time of my death, to Bill presently residing at 123 Main Street, Nowheresville, PP, with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, I give such animals to Bob, presently residing at 124 Main Street, Nowheresville, PP with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, my Executor shall select an appropriate person to accept the animals and treat them as companion animals, and I give my animals to such person.
I direct my Executor to give $1000.00 from my estate to the person who accepts my animals, and I request (but do not direct) that these funds be used for the care of my animals...
You will note that the money goes directly to the caregiver and the clause only requests that the funds by used for the care of the animals.
Not very strong.
Remember over forty- six states have a statutory pet trust on their books. A much more effective and efficient document for your pets.