Pet Trust Law Blog : Pet Trust Lawyer & Attorney : Dan Meek Law Firm : Estate Planning, Pet Guardians, Will Provisions

According to the British newspaper, The Guardian, www.Guardian.co.uk, Tommaso, a four-year-old, may very well now be the world's richest cat.

The one-time stray from Rome, was left over $10 million dollars from his owner with the proviso to her attorneys that they find an animal welfare body or association to which to leave the inheritance and the task of looking after the cat.

Under Italian law, animals cannot inherit directly money or assets. But they can be beneficiaries if a suitable trustee is found.

I do not think that there will be any scarcity of volunteers to be the trustee.

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I recently received an email from an attorney in Connecticut. He wanted to know if there was a good statutory cite to the Connecticut Pet Trust.

Signed into law in 2009, The Statute on Trusts provides:

Sec. 45a-489a. Trust to provide for care of animal: Creation. Administration. Jurisdiction. Termination. (a) A testamentary or inter vivos trust may be created to provide for the care of an animal or animals alive during the settlor's or testator's lifetime. The trust shall terminate upon the death of the last surviving animal. A trust created pursuant to this section shall designate a trust protector in the trust instrument whose sole duty shall be to act on behalf of the animal or animals provided for in the trust instrument. A trust protector shall be replaced in the same manner as a trustee under section 45a-474.

(b) Except as otherwise provided in this section, the provisions of the laws of this state that govern the creation and administration of trusts shall apply to a trust created to provide for the care of an animal or animals pursuant to this section.

(c) (1) The Superior Court, or a probate court described in subdivision (2) of this subsection, shall have jurisdiction over any trust created pursuant to this section.

(2) A probate court shall have jurisdiction over any trust created pursuant to this section if the trustee of the trust is otherwise subject to the jurisdiction of such probate court, or the trust is an inter vivos trust and the trust is or could be subject to the jurisdiction of such probate court for an accounting pursuant to section 45a-175.

(d) The trustee of a trust created pursuant to this section shall annually render an account for the trust, signed under penalty of false statement, to the trust protector.

(e) Any individual identified as a trust protector pursuant to this section may file a petition in the Superior Court or a probate court having jurisdiction pursuant to subsection (c) of this section to enforce the provisions of the trust, remove or replace any trustee of the trust, or require a trustee to render an account as required under subsection (d) of this section. The court may award costs and attorney's fees to the trust protector, from the trust property, if the trust protector prevails on a petition filed under this subsection and the court finds that the filing of the petition was necessary to fulfill the trust protector's duty to act on behalf of the animal or animals provided for in the trust instrument.

(f) If the trust protector determines that the trustee has used trust property for personal use or has otherwise committed fraud with respect to the trust, the trust protector may request the Attorney General to file a petition in the Superior Court or a probate court having jurisdiction pursuant to subsection (c) of this section to enforce the provisions of the trust, remove or replace any trustee of the trust or seek restitution from the trustee with respect to such trust property. The Attorney General may file such petition if the Attorney General determines that the circumstances warrant such filing.

(g) Trust property may be applied only to its intended use, subject to proper trust expenses including trustee fees, except to the extent the Superior Court or a probate court having jurisdiction pursuant to subsection (c) of this section, upon application by the trustee or trust protector, determines that the value of the trust property exceeds the amount required for its intended use. Trust property not required for its intended use, including trust property remaining upon termination of the trust, shall be distributed in the following order of priority:

(1) As directed by the terms of the trust instrument;

(2) To the remainder beneficiaries identified in the trust instrument, under the same terms provided in the trust for the remainder interest;

(3) To the settlor, if then living;

(4) Pursuant to the residuary clause of the settlor's or testator's will; or

(5) To the settlor's or testator's heirs in accordance with the laws of this state governing descent and distribution.

Indeed, there appears to be the necessary legislation in place.

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Leona Helmsley became infamous, when she who died in 2007 and left her dog Trouble, a $12 million trust in her will.

Trustees fought over the provisions and the amount of money was later reduced by the court and an agreement among the Trustees to around $2 million.

Now it has been reported that Trouble apparently died last December, without any fanfare, and the remaining monies reverted to the Helmsley Charitable Trust.

After all of the angst and outcry, it seems as though Leona got her wish and achieved her goals.
Trouble continued to live a pampered life-just as Leona wanted and planned.

And the Helmsley Charitable Trust received the remainder of the trust funds- just as Leona wanted and planned.
 

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I recently gave a seminar about pet trusts to a group of veterinarians and the use of a Pet Panel was one of the main interests of the attendees.

I have written before on the pet panel and maybe now is good time to review the process. A pet panel is a group of individuals appointed by you, in your Trust and they have various duties as you and your counsel shall provide.

Some example of duties as established for a pet panel, as are follows:

Work with the Pet Trustee to select an appropriate Pet Guardian for each pet;

Make the final decision on accepting or rejecting the choice for Pet Guardian;

Review the Pet Trustee’s performance;

Authorize financial bonuses for the Pet Guardian pursuant to the Trust;

Assist the Pet Trustee and Pet Guardian with major medical decisions affecting the health and lives of the pets;

Select a new successor Pet Trustee to replace the then serving Pet Trustee if there are no other Pet Trustees named or if there are none that are willing or able to serve;

Make occasional, unannounced, in-home visits to monitor the care of the pets;

Assist with end-of-life decisions for the pets, including euthanasia, based on the pets' quality of life, pain and suffering, and chances of meaningful recovery.

The pet panel can have as much or as little powers a your determine.

Your counsel can assist you with a Pet Panel when you complete your estate planning for your pets.

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My last post was on the use of a charitable remainder trust in the context of a pet trust.

My posting was unclear to many readers and may not be a good guideline for some pet owners.

Although many do use a charitable remainder trust, there is no tax deduction as with a normal trust that is given for testamentary gifts left to qualified charitable organizations

In fact, The Internal Revenue Service has specifically ruled that amounts passing to a pet trust for the lifetime benefit of a pet do not qualify for the charitable deduction given under estate tax regulations.

In Revenue Ruling 78-105, the IRS stated the ruling even affects pet trusts that name a qualified charity as its remainder beneficiary.

I am sorry for the confusion and it just another reminder to use a good estate planning attorney and accountant with all of your estate planning, pets included.

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I had an extensive conversation this week with a local attorney regarding the scope of duties of a Trustee in a Pet Trust.

I have previously written about the role of the Trustee as follows:
 

Generally speaking, the duties and responsibilities of a Trustee for a Pet Trust are no more or less than any other Trustee.

The Trust Agreement itself will set out the specific role of the Trustee and set the parameters of the powers of the Trustee.

The Uniform Trust Code also defines in detail, the duties and powers of the Trustee that have been accumulated as established by the courts and the legislatures throughout the years.

Beginning with Section 801, DUTY TO ADMINISTER TRUST, which states…

Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this [Code].

The Code sets out in great detail the expectations of the Trustee, including definitions and explanations of the needed loyalty and impartiality of the Trustee as well as the accumulation, control and accounting of the Trust property.

Your choice of a Trustee for your Pet Trust, whether an organization or an individual should not be taken lightly. Although their responsibilities are set high and can be closely monitored by your Pet Caretaker, you will be out of the picture and the decisions will be made by someone else

You will no longer have control of the property that you have set aside for the care and protection of your pet.

Chose your Pet Trustee wisely.
 

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Massachusetts Governor, Deval Patrick, has until Sunday to sign pet trust legislation, that was first introduced in January of 2009.

Donna Turley, a Boston-based attorney helped draft the legislation that would provide for the enforcement of pet trusts.

Currently Massachusetts is in the minority of states that do not allow for estate planning for animal owners.
 

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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 is 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
 

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I would like to give a big thank you to writer Claudia Buck of the Sacramento Bee.

She recently authored an articled entitled,” Personal finance: legal trusts provide for pets after owner dies.”

Ms. Buck was kind enough to interview me regarding my thoughts and some opinions on pet trusts and even used some material for the article.

You can read the entire story here.

Thanks again to Ms. Buck for providing the opportunity to spread the word on the growing usage of pet trusts.
 

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There are some other viable options with estate planning for your pets, in addition to the traditional pet trust.

You can leave your pet to an animal sanctuary and hope that it remains open after your demise.

Or, you may leave your pet to a veterinarian program or humane society, but it will probably be at a considerable financial cost.

You may also leave your pet to a life-care center or rescue organization, but it will not have the same home setting atmosphere for your pet.

In addition, of course, you can leave a bequest in your will, but it will not take affect until your death.
 

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To determine how much money you will need to fund your pet trust, Gerry W. Beyer, the Governor Preston E. Smith Regents Professor of Law for Texas Tech University, suggests that you consider some of the following issues:

   The type of animal
   The animal’s life expectancy (especially important in case of long-lived animals)
   The standard of living you wish to provide for the animal (including food and grooming
   The need for potentially expensive medical treatment
   Payment for the caregiver
   Whether the trustee is to be paid for his or her services, and
   Adequate funds should also be included to provide the animal with proper care, be it an animal-sitter or a professional boarding business, when the caregiver is on vacation, out-of-town on business, receiving care in a hospital, or is otherwise temporarily unable personally to provide for the animal.

This question always arises when discussing pet trusts and never has a simple or easy answer.

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What is a declaration of intent in a pet trust?

Most pet trusts have some type of guideline, directional or owner intention clause included.

It may or may not be effective as to the trustee, but is considered a declaration of the owner’s desire for their pets.

 The following is an example of such a clause:

Without in any way limiting the discretion of my Trustee over distributions of income and principal from this trust, or the placement of my pets subject to this trust, I declare to my Trustee that the primary purpose of this trust is to provide a warm, caring and loving environment for my pets for the remainder of their lives, including good nutrition, and veterinarian care and attention. Preservation of principal is not as important as these objectives.

Discuss this important clause with your attorney when your prepare your pet trust.

It can be a valuable guide for your trustee.
 

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Welcome Georgia!

Georgia became the forty-fourth state to officially recognize pet trust legislation.

Effective July 1, 2010, a new Revised Georgia Trust Code contains the following clause:

   53-12-28.

   (a) A trust may be created to provide for the care of an animal that is alive during the settlor's lifetime. The trust shall terminate upon the death of such 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 Code section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

   (c) Upon termination of a trust authorized by this Code section, the trustee shall transfer any unexpended trust property in the following order:

     (1) As directed in the trust instrument;

    (2) If the trust was created in a nonresiduary clause in the settlor's will or in a codicil to the settlor's will, under the residuary clause in the settlor's will; and

    (3) If no taker is produced by the application of paragraph (1) or (2) of this subsection, to the settlor, if living, and if not, to the settlor's heirs, as determined under Code Section 53-2-1.

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There is no “one best” way to fund a pet trust.

You may specify a bank account, a savings or money market account, an annuity, an IRA, a payable on death bank account or other form of contractual agreement to fund a pet trust.

Of course, one of the most common forms of funding is through the purchase of a life insurance policy.

Generally, the trustee is named as the beneficiary of the life insurance proceeds to be placed into the pet trust

However, you should consult with your attorney, insurance broker, commodity broker or banker to correctly determine the name that should be placed on these accounts for the benefit of the trustee and your pets.
 

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I recently received an inquiry regarding the appropriate cost for a pet trust.

I have written many times on this subject and the answer is generally the same.

It depends...upon a number of issues.

Will you provide for the trust in a clause of a new will that you are writing?

Will it be a completely new simple trust of five or six pages or one of twenty to thirty pages for numerous animals?

If you already have your estate plan in place, is this a new document or a codicil (addition) to those documents?

Are you establishing numerous specific rules for the caretaker, or allowing a great deal of latitude?

If you are leaving your pet to an institution, do they have guidelines for your documents, do they prepare form documents or will they accept those of your counsel?

The needs and desires of each individual is different and therefore each estate plan will be different.

A competent professional legal adviser will be open and clear about the costs of the pet trust and how it interacts with the totality of your specific estate plan.

Ask your questions!

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Victor Posner was an American businessperson, millionaire and philanthropist who was an original pioneer of the leveraged buyout.

Upon his death, he left a wife and son to survive him.

That wife Gail, has now passed away and left $3 million in a trust to her pet Chihuahua, Conchita and two other dogs.

Her housekeeper will be able to live, rent free, in an $8.3 Million Miami Beach mansion, as long a sheremains the caregiver of the dogs.

She also left some $26 million to house staff and bodyguards.

By the way, she left her son Carl----One million dollars.
 

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The question of how much money should be placed into the pet trust is a constant issue.

Unfortunately, there have been very few court decisions to give us the appropriate guidelines for this matter.

One older case, dating to 1974 entitled, In re Lyon Estate, 67 Pa. D. 7 C.2d 474 (1974), does provide some insight, as reported by Suzette Daniels of Michigan State University-Detroit College of Law here.

"Oftentimes, courts have the power to reduce the gift if it is deemed to be an unreasonable amount. Such was the case of the will written by Florence Lyon. Her will directed that the principal or income of her estate was to be used for the care of her six dogs and four horses, and the residuary was to go to Princeton University. At the time of her death, the income was deemed to be approximately $40,000 to $50,000 a year. Clearly this is an excessive amount of money to care for these animals, but there was language to suggest that Ms. Lyon might not have had any idea how large her estate was or how much it would cost to care for these animals The court determined that the life expectancy for them was anywhere from one to twenty years. It further ascertained that, “It will take five acres of land, a $22,000 shelter and $5,000 a year to care for the presently living animals.” With this information in mind, the court held that the amount indicated by the testator was excessive. It modified the provision by directing the executors to either reserve $150,000 to be held for the care of these animals or give the entire residuary to Princeton University immediately but with an agreement that Princeton provide the care for these animals.

While an excessive amount of money could lead to court interference, an amount too small to properly care for the animal could lead to financial hardship on the part of the caretaker.

Testators should not only determine an amount of money that is reasonable to cover day to day maintenance but also factor in expenses for emergency medical care and hospitalization".

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Oklahoma has become the latest state to allow for a statutory pet trust.

Governor Brad Henry recently signed House Bill1641 into law.

The law creates a new section of law that validates trusts for the care of designated pets. Unless the trust stipulates, the trust is terminated when no living animal is covered. The bill outlines the rules governing such trusts, including compensation for the trustee, accounting requirements and provisions for terminating the trust.

The measure describes how trusts for pets works, and how the issue is resolved if there is no living pets. It provides for trustee compensation and the naming of such if no trustee is designated. Any trust that does not have a value of $20,000 or more is exempt from fees, except as directed by a court or the trust instrument.

The law becomes effective in approximately three months.

Good job by the Oklahoma legislature to get on board with a majority of the states that recognize pet trusts.

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Should I use a will or a pet trust to plan for my dogs after I am gone?

Donna                                                                          Cincinnati, Ohio

Donna, a will is a legal document that contains your instructions and wishes as to how to distribute your assets and property after your death. The person who writes a will is called a testator. The will can also appoint individual’s that can serve, if necessary, as a guardian for your minor children and nominate a personal representative to carry out the instructions of your will.

Each state has minimal legal requirements that must be followed for a will to be valid and accepted by the courts. But generally, the will must be made by a competent adult, it must be in writing and signed by the testator and witnessed by a least two other individuals and a notary.

You can include a clause for your pets in your will with the appropriate language, but you need to be fully aware of the possible limitations and drawbacks. In some circumstances, the preparation of a pet trust is more appropriate in your estate planning for your pet. Today the majority of states accept and recognize some form of a pet trust.

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Pet lover looking for help…

..."I was wondering if you were aware of any pet welfare organizations that would be available to monitor, over the long term, the well-being of two horses that were left a trust?

It is a long story BUT a close friend of mine passed away and left inside her main trust a subtrust to pay for the care and maintenance of her two horses.

I was appointed the caregiver of them.

The current trustee has fired me from my position (and benefit) as supervising caregiver and we are currently in a lawsuit.

I am preparing for our court-ordered mediation and one of my alternative ideas is to agree to let the horses stay under the care of the current Trustee however, I would want an outside party to monitor the health and care of the animals, as well as the accounting of the horse trust.

Perhaps for an ongoing donation to the charity organization from the Trust.

The Trust is written in such a way that, should the horses die or have to be euthanized, the remainder of their trust reverts back to the bigger Trust and the current Trustee has already shown herself to be inclined to pre-maturely euthanize one of the horses...

Any answers…reply to me.

Thanks
 

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Can I set up a trust for my horses?

Valerie                                                                     Mesa, Arizona

Valerie, you can indeed set up a trust for your horses.

In fact, Wendy Feldman recently wrote an article on Arizona Bridle and Bit website.

Ms. Feldman, CLU®, ChFC®, CASL® recently wrote:

… the state of Arizona has recently passed legislation making trusts for animals legal and enforceable. That means when you take the time to put a written plan in place to care for your horses they will be cared for according to your wishes.

…you need to sit down with a qualified professional to write down your specific goals and wishes with regard to your animals. While the Arizona statute is in place allowing you to write the plan, you must include many details that a professional estate planning attorney can provide for you.

...How detailed can you be in this plan? Very detailed. For example, the plan can determine who will be the caregiver, the options for keeping, selling or finding good homes for the animals and how much money is available for their care. Additionally, the care plan for each horse can be spelled out individually. Of course, most horse owners also have many other animals. The plan can be written to provide for them all…

Read more on this issue here.
 

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Can I use an insurance policy to fund the trust for my cat, Candy?
Donna                                                                        Cleveland, Ohio

Donna, insurance policy proceeds are one of the most common, popular and acceptable methods to fund a trust for Candy.

An insurance policy on your life can be issued and the proceeds will generally be paid to “_________________” as the Trustee of the Candy Cat Trust.

Candy should obviously not be the beneficiary of the insurance policy.

In most states, pets are still considered to be personal property and a piece of personal property certainly cannot be a beneficiary under an insurance policy.

If it is properly established, there should be no tax consequence as a result of the policy being paid to the Trust.

Good for you, for planning for the future of both you and Candy.

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My Bengal cat Billy, is 15 years old and undergoing some serious changes in his behavior. Are there some common signs that I can look for to see if his actions are natural or need medical attention?

Shannon                                                   New Orleans, Louisiana

Shannon, most Bengal cats live from 10 to 15 years.

According to PetPeoplesPlace.com, common signs of cat aging include:

   "cloudy eyes, hearing loss; thinning fur; feels the cold; loose skin; prominent spine, shoulders and hips; loss of muscle tone; stiff joints or lameness and gray hairs around the muzzle and in coat. Behavioral signs include: less tolerance of environmental changes; sleeping more deeply and more often and generally being less active. Some older cats become more irritable or cantankerous due to deafness and/or joint pain, while others mellow with age. Most become more laid back and sociable with those they regard as friends. These are all age-related changes, but sudden mood changes may indicate illness or injury. A cat which starts hiding, becomes unsociable or which seeks constant reassurance may be unwell, so ask your vet to check that all is well..."

Billy is probably at the downside of his life, make sure that any arrangements that you need for and with him, are complete in his and your estate planning.
 

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We would like to adopt a dog into our family home. I have heard that there is an application that usually is required for this procedure. Can you tell me about this?

Cathy                                                                                   Estero, Florida

Cathy, most agencies, either private or public require an application and review of the prospective adoptive pet parents.

For example, Southern California Giant Schnauzer Rescue is a group of dog rescuers who have banded together to help Giant Schnauzers find their forever homes.

The founder is virtual assistant, paralegal and animal lover Karalyn Eckerle of California.

They define their Forever Home as,” a home where he is loved, respected and well cared for -- a home where this intelligent working dog can love, protect and call his own.

Go to their website here, and download a copy of the adoption application.

It is a good example of the type of information that most agencies will request and require during the adoption period.

Good for you; to even consider adopting a pet.
 

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The question of how much money should be placed into the pet trust is a constant issue.

Unfortunately, there have been very few court decisions to give us the appropriate guidelines for this matter.

One older case, dating to 1974 entitled, In re Lyon Estate, 67 Pa. D. 7 C.2d 474 (1974), does provide some insight, as reported by Suzette Daniels of Michigan State University-Detroit College of Law here.

   "Oftentimes, courts have the power to reduce the gift if it is deemed to be an unreasonable amount. Such was the case of the will written by Florence Lyon. Her will directed that the principal or income of her estate was to be used for the care of her six dogs and four horses, and the residuary was to go to Princeton University. At the time of her death, the income was deemed to be approximately $40,000 to $50,000 a year. Clearly this is an excessive amount of money to care for these animals, but there was language to suggest that Ms. Lyon might not have had any idea how large her estate was or how much it would cost to care for these animals The court determined that the life expectancy for them was anywhere from one to twenty years. It further ascertained that, “It will take five acres of land, a $22,000 shelter and $5,000 a year to care for the presently living animals.” With this information in mind, the court held that the amount indicated by the testator was excessive. It modified the provision by directing the executors to either reserve $150,000 to be held for the care of these animals or give the entire residuary to Princeton University immediately but with an agreement that Princeton provide the care for these animals.

   While an excessive amount of money could lead to court interference, an amount too small to properly care for the animal could lead to financial hardship on the part of the caretaker.

   Testators should not only determine an amount of money that is reasonable to cover day to day maintenance but also factor in expenses for emergency medical care and hospitalization".
 

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Today we revisit an alternative form of estate planning for your pets.

We wrote here about Eternal Earthbound Pets. Their philosophy is:

   "We are a group of dedicated animal lovers, and atheists. Each Eternal Earth-Bound Pet representative is a confirmed atheist, and as such will still be here on Earth after you've received your reward. Our network of animal activists are committed to step in when you step up to Jesus. We are currently active in 20 states and growing. Our representatives have been screened to ensure that they are atheists, animal lovers, are moral / ethical with no criminal background, have the ability and desire to rescue your pet and the means to retrieve them and ensure their care for your pet's natural life."

Well, I recently received an email comment from a reader regarding this service who wrote,“Christian pet owners will need a representative to enforce their contracts with the atheists.”

Apparently, you can now enter into a contract with a group called PRAY from Oklahoma City that will help you in this area. Their website reads:

   For your Christian donation (in an amount that you believe is worthy of protecting your beloved pets) we will guarantee that should the Rapture occur within the time period covered in your contract with any business which offers to rescue your pets post rapture, PRAY will immediately secure legal enforcement of said contract or seek damages to be placed in trust to ensure the care of your pet for its lifetime.

I thought that the Eternal Earthbound Pet idea was strange.

Apparently, it is a for profit business. Who knew?

Maybe it is just a Halloween thing…
 

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A reader Pat, recetly wrote to us:

   "Pets have been proven to have positive mental and physical health benefits for the elderly. But often senior citizens forgo this benefit for fear their pets will be killed upon the owner's death. Pet trusts give peace of mind to the elderly and also help reduce the number of homeless animals. Getting old is hard enough. Why deny this comfort to the elderly? Maybe those who disagree are greedy relatives who hope to get something for nothing."

Just another good reason for you and your family to prepare for pet estate planning.

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What do you suggest the use of a pet trust rather than just including the pet in your will?
Cheryl                                                              Boca Grande, Florida

Cheryl, a statutory pet trust is more easily enforceable than a general will clause.

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.

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Can you explain to me in general terms, what exactly is a Trust agreement?

Billy                                                                       Charleston, South Carolina

Billy, a Trust is a written formal agreement where a trustor (the one writing the trust) places the ownership rights to a specific piece of property or asset under the control of another person, called a Trustee.

The Trustee is to conserve and protect the property on the behalf of someone else, called the beneficiary, who has been designated by the Trustor.

A typical trust will contain provisions for:

(1) The purpose for which the trust was established;
(2) details of the assets placed in the trust;
(3) the powers and limitations of the trustees, including all duties and responsibilities;
(4) form of trustees' compensation; and
(5) conditions and terms that will terminate the trust.

When you are doing estate planning for animal owners, the pet owner is the trustor and the pet is the specific asset to be protected by the trustee. You also obviously need to appoint a caregiver to physically take care of the pet. Any remaining monies in the trust after the death of the pet, goes to the beneficiary.

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What is a declaration in a pet trust?

Tommy                                                                      Indianapolis, Indiana

Tommy, you are probably referring to the beginning statement that many pet owners place into the trust.

This statement is a personal declaration of the pet owner, as to the commitment and attitude toward their pets.

A partial example of one owner’s declaration is:

My pets and animals are important members of my family. During any period of time that I am incapacitated, the Pet Trustee, upon the guidance of the Pet Panel, shall provide as much of the principal and net income of my trust as is necessary for the care, health, maintenance, and support of my pets and animals. I direct the Pet Trustee to keep my pets and animals at my place of residence while I am incapacitated, if practical. However, if it is not practical for the Pet Trustee to keep my pets and animals at my place of residence while I am incapacitated, then the Pet Trustee shall take guidance from and comply with the Pet Profile and Pet Panel in placing the pets with the appropriate Pet Guardian.

A declaration is merely a personal guideline provided by the pet owner. It establishes the tone of the trust and the general desires of the owner.

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I want to provide the necessary estate planning after I am gone, for my Cat, Casey. I recently saw that Legalzoom.com offers online pet trusts. Would one of these trusts be adequate to protect Casey?

Cyndi                                                                               Bonita Springs, Florida

I certainly cannot speak to the quality of any Legalzoom.com document or its preparation or accuracy.

I have never used the service.

I did visit the site however and read an article by a Tiffany Knight.

Part of the article reads, “But one word of caution: laws concerning pet trusts differ from state to state. Specific legal language is required to establish an enforceable trust for a pet's care. The following 19 states have adopted specific language on animal trusts: Alaska, Arizona, California, Colorado, Florida, Iowa, Kansas, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Tennessee, Utah and Washington.”

On the other hand, Professor Gerry Professor Beyer who is on the faculty of the Texas Tech University School of Law, as the Governor Preston E. Smith Regents Professor of Law, and one of the experts in estate planning for pet owners notes that some 43 states and the District of Columbia have some form of statutory pet trust.

I would personally put my faith and trust in the writings of Professor Beyer when considering the use of their service.

But, that is simply my opinion.
 

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How much should I pay the caregiver of my pet trust?

Betsy                                                                        Naples, Florida

Betsy, this is a very good question and one that I cannot easily answer.

You obviously need to make some type of arrangement in your pet trust for payment to your pet’s caregiver.

The amount can vary greatly.

It depends upon the number of pets in the trust, the expected duration of the life off the pets, the relationship between you-the caregiver-and the pets and the expectations of duties and responsibilities that you place upon the caregiver.

The fee may be as small as a few dollars every week or can increase to several hundred dollars per month.

Remember, that no matter how much the caregiver likes your pets, it is still a chore for them to provide this service.

Discuss the potential caregiver fee with your attorney, pet panel and maybe even your trustee.
 

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I want to write a pet trust for my three cats, Curly, Larry and Moe.

However, I do not have anyone that I can trust to be the Caregiver.

Is there an organization that you could recommend for this position?

Kathy                                                                       Seattle, Washington

Kathy, Most local Humane Societies will perform this duty for your pet.

In Seattle, the Seattle Humane Society provides this service. It is called the Seattle Humane Society Pet Guardian Program.

According to Brenda Barnette, CEO, their Pet Guardian Program,”provides animal lovers with the peace of mind and the guarantee that we will be there for their beloved companions when they are no longer able to care for them due to disability or death.”

The Pet Guardian Program is a free service for Seattle Humane Society adopters, volunteers and donors who specify in their wills or trust documents that their pet.

She also makes the following recommendations:

     • Prepare written instructions including the pet's likes and dislikes and the name of the pet's regular veterinarian,

     • Update the instructions every six months and keep them in a safe place,

     • Make arrangements with a trusted friend, relative or designated caregiver to transport the pet to the Seattle Humane Society when the time comes.

For further information, visit their web site here.
 

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How much should I pay the Trustee of the pet trust for my cat, Belinda? (I realize that I would not actually be around…so I will not be paying!)

Kathy                                                                                             St. Augustine, Florida

Kathy, this is a very complex question.

It will depend upon the amount of duties and responsibilities that you place upon the trustee.

How extensive are the instructions for the trustee?

What is the amount of money in the trust?

How many pets are involved?

One method used is to try to estimate the number of monthly hours that the Trustee will be actively involved and simply pay a fair hourly rate as the monthly compensation.

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What if my Trustee is not operating within the instructions and confines of my pet trust? Who is going to take care of this since I obviously will not be around.

T. O.                                                                                         Indianapolis, Indiana

Many of the trusts that we create have a Trust Protector or a Trust Panel to oversee the Trustee.

In addition, usually the Trust Agreement will provide the necessary steps for formal removal.

Some of the common terms are:

       Notice of removal shall be in writing and shall be delivered to the Pet Trustee being removed, along with any other Pet Trustees then serving.

       That the notice of removal of the Trustee shall be effective in accordance with its provisions.

       The Notice of appointment shall be in writing and shall be delivered to the successor Pet Trustee and any other Pet Trustees then serving.

       The appointment shall become effective at the time of acceptance by the successor Pet Trustee. A copy of the notice shall be attached to this agreement.

We will look at the role of the Trust Panel and Trust Protector later this week
 

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I have written and commented on many occasion on the most famous case of the estate of Leona Helmsley.

It is well documented that she left several million dollars to her dog Trouble, and that the bulk of her estate of almost $8 billion dollars was to be used for the care and welfare of animals.

The American Society for the Prevention of Cruelty to Animals is now reporting that they have joined other organizations in filing suit against the Trustees of the Helmsley estate.

The ASPCA website reports:

    “Mrs. Helmsley’s Trust Agreement was clear: Help dogs. And the Trustees have not done this, and instead pursued their own agendas with Mrs. Helmsley’s money,” said Wayne Pacelle, president and CEO of The Humane Society of the United States. “Every person with a will or estate, and every charity that relies on bequest income, should be profoundly concerned about this misdirection of funds.”

You can read the entire story here.

Certainly, with the amount of money that is involved, this is not a controversy that will end soon.

The result of this legal battle will have a lasting affect on all estate planning for all animal owners.
 

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I have read before about your thoughts on a living will for pets. If I have one prepared for my cat, Mrs. Longbeard ( a long story) do you have any suggested language.

Donna Sue                                                                        Batesville, Indiana

Donna, obviously you are going to have your attorney prepared this document and he or she will have the necessary knowledge for a living will.

However, in general terms, language such as this should suffice:

    ...Representative is to provide any needed reasonable veterinary care that my animal may need at that time to restore the animal to generally good health and to alleviate suffering, if possible. Any animal(s) not in generally good health or who is so suffering—and whose care is beyond the capabilities of veterinary medicine, reasonably employed, to restore to generally good health or to alleviate suffering—shall be euthanized, cremated, and the ashes disposed of at the discretion of…

I hope that you will not need to use this document for many years to come.
 

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Why do I need a pet trust? I assume that my sister will take care of my dog Ginger, when I die. My sister, Valerie always plays with Ginger when she comes to visit and they seem to get along well.

Betsy                                                                            Bonita Springs, Florida

Betsy, many people assume that when they die their family or close friends will simply take in their pets and take care of them.

Unfortunately, the facts do not bear out this assumption.

Each year from four to six million pets are euthanized because they cannot be placed with a caring family or individual. Although there are no hard statistics, it is generally presumed that owners abandoned a great majority of the pets when they died.

A little estate planning for your pet, whether formal or not, can eliminate some of these numbers.

At least you need to talk to Valerie to see if see will assume the responsibilities for Ginger, if it becomes necessary.
 

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I want to provide for my three cats upon my death, but I have no friends or relatives that I can be comfortable to nominate as a caregiver. Any suggestions?

Andy                                                                                     Scottsburg, Indiana

Andy, I am pleased that you are taking the time to plan for the care of your cats after you can no longer do so.

The first obvious choice is a local humane society.

You can meet with the officials and view the physical surroundings to see if you approve. Is the facility too large or too crowded? Will you cats be caged for extended periods of time or are there free roaming areas available? What is the ratio of employees/volunteers to the number of animals? Does the society require a minimum amount of monetary donation to care for your cats? Is there an active adoption program available?

If the local humane society does not meet your standards; you can contact local non-profit animal protection groups, private sanctuaries or university veternarian programs.

There are viable alternatives to individual caregivers.
 

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How many pet owners actually prepare and actually implement pet trusts?

Pam                                                                                        Atlanta, Georgia

Pam, this is a good question that is a little difficult to answer, as most people do not want to appear to be unprepared or dilatory and may not respond truthfully when questioned about these issues.

However, the best estimates are that only approximately twenty percent of all individuals under the age of fifty have prepared estate plans for their business and families.

Moreover, the same surveys indicate that approximate twenty to twenty–five percent of all pet owners have established pet trusts.

Not an especially high percentage, but it appears that pet owners may be more proactive in this area.
 

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I have written extensively on the proposed legislation regarding the new Connecticut Pet Trust here, here, here and here.

Well, the new bill has finally been passed out of the state legislature and only awaits the signature of the governor to become a law.

The trust is very comprehensive and even includes a provision for a trust enforcer.

You can read the entire statute here and welcome Connecticut as the forty-first state to have a Pet Trust.
 

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John O’Brien is an experienced estate-planning and probate attorney in Wethersfield, Connecticut.

He is an active advocate of the newly proposed legislation regarding the passage of language to provide for Pet Trusts and has been keeping us apprised of the pending bill in that state,

In a recent post on his blog, the Connecticut Estate Planning Report, he wrote that there are actually two different bills that have been offered for adoption.

He also questions the real motive for the passage of one of the bills.

He wrote:

   In large measure, the two Bills are similar. There is one significant difference from the perspective of a client that wants to establish such a trust -- any trust must be approved by the Probate Court. Apparently the Legislature sees this as an opportunity to generate revenue for the Probate Court because the Probate Courts will charge a fee of between $50-$750 to review the trust. This change creates all kinds of logistical problems for the implementation of these type of trusts, albeit ones that can be overcome, but certainly ones that are better avoided...."

You should go to his blog to view his entire article.

We will look to Mr. O’Brien to keep us in the loop as this law progresses…or not.
 

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In February, I wrote that A. Wade Kach, a Baltimore County Republican, had introduced legislation that would provide for pet trusts in Maryland.

A previous bill that was introduced in the Maryland Senate in January of 2006 (Senate Bill 235) failed to pass.

Well this time the legislature got it right.

The newly passed law goes into effect on October 1, 2009 and reads as follows:

(A) A trust may be created to provide for the care of an animal alive during the lifetime of the settlor.
 

(B) A trust authorized by this section terminates:

(1) if created to provide for the care of one animal alive during the lifetime of the settlor, on the death of the animal; or

(2) if created to provide for the care of more than one animal alive during the lifetime of the settlor, on the death of the last surviving animal.

(C) (1) A trust authorized by this section may be enforced by a person appointed under the terms of the trust or, if no person is appointed, by a person appointed by the court.

(2) a person having an interest in the welfare of an animal the care for which a trust is established may request the court to appoint a person to enforce the trust or to remove a person appointed.

(D) (1) Except to the extent that the court may determine that the value of a trust authorized by this section exceeds the amount required for the use intended by the trust, the property of the trust may be applied only to the intended use of the trust.

(2) Except as otherwise provided under the terms of the trust, property not required for the intended use of the trust shall be distributed:

(i) to the settlor, if living; or

(ii) if the settlor is deceased, to the successors in interest of the settlor.

Note: The Rule Against Perpetuities does not apply to pet trusts under Est. & Trusts § 11-102 (b) (12).

Animal owners in Maryland, you can now join 39 other states that have passed statutory pet trusts.

I hope that the other will continue to follow suit.
 

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Can I use a bank account to fund a pet trust for my dog, Cheyenne?

Judy                                                                                           Boulder, Colorado

Judy, you may specify a bank account, savings or money market account, an annuity, an IRA, a payable on death bank account or other form of contractual agreement to fund a pet trust.

Of course, one of the most common forms of funding is through the purchase of a life insurance policy.

You should consult with your attorney, insurance broker, commodity broker or banker to correctly determine the name that should be placed on these accounts for the benefit of the trustee and Cheyenne.
 

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I recently posted a story concerning proposed new legislation for a statutory Pet Trust in the state of Connecticut.

I continue to receive responses from readers that are both for and against the bill.

Here is one of the recent responses.

   "Pets have been proven to have positive mental and physical health benefits for the elderly. But often senior citizens forgo this benefit for fear their pets will be killed upon the owner's death. Pet trusts give peace of mind to the elderly and also help reduce the number of homeless animals. Getting old is hard enough. Why deny this comfort to the elderly? Maybe those who disagree are greedy relatives who hope to get something for nothing."

What do you think?

We will post your thoughts and attitudes as they are received.
 

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Yesterday, a reader responded to a previous post that had expressed opposition to the newly offered statutory pet trust in the state of Connecticut.

The new response to the legislation is below:

   "The economy is a major reason why people should be worrying about things like the care of their pets after they are gone. If everyone else is hurting financially then they cannot depend on friends and family to just willingly care for their animals. As I understand it, a pet trust will pay for the care of the animal instead of adding an additional burden on another person. Whether or not the statute is a priority at this time. It needs to be done. It is part of the whole picture."

Let us know your thoughts on this subject…do these tough economic times change your comfort level for your pet’s future?
 

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Just recently, I wrote that Maryland was the latest state attempting to pass legislation for a statutory pet trust

Now, it seems, that Connecticut may follow that trend.

Connecticut Senator Toni Boucher has proposed a bill that provides for the creation of trusts for the care of domestic animals. The bill would allow pet owners to create a trust that terminates when the last animal named dies or 90 years after its creation.

"The question of who cares for a pet after the death of its owner is troubling to many people," said Boucher in a press release.

"Some pets, like parrots, can live for 40 to 80 years," she said. "If a pet owner becomes ill, incapacitated or dies, it makes sense to have already decided ahead of time how to provide one's beloved pets with food, shelter, veterinary care and companionship."

A draft of the proposed legislation is below:

AN ACT CONCERNING THE CREATION OF TRUSTS FOR THE CARE OF DOMESTIC ANIMALS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2009) (a) A testamentary or inter vivos trust may be created to provide for the care of a domestic animal alive during the settlor's lifetime. Such trust shall terminate upon the earlier of (1) the death of the domestic animal or, if the trust was created to provide for the care of more than one domestic animal alive during the settlor's lifetime, the death of the last surviving domestic animal, or (2) ninety years after its creation.

(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust instrument or, if no person is so appointed, by a person appointed by the Probate Court. Any person having an interest in the welfare of the domestic animal may petition the court to appoint a person to enforce the trust or to remove a person so appointed.

(c) Property of a trust authorized by this section may be applied only to its intended use for the care of the domestic animal, except to the extent the Probate Court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust instrument, property not required for the intended use shall be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

(d) Any person designated pursuant to the terms of the trust instrument may act as trustee of a trust authorized by this section. Any such trustee may also be designated as a remainder beneficiary of such trust pursuant to the terms of the trust instrument. For the purposes of this subsection: (1) "Person" means a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association or any other legal entity; and (2) "remainder beneficiary" has the same meaning as provided in section 45a-542a of the general statutes.

We will keep you advised as this bill winds through the legislative corridors.

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After a recent tennis match, my partner asked me to describe the difference between a testamentary and an inter vivos trust.

I thought that was a strange request at that time and I inquired as to his interest. Jeff said that he was contemplating a trust for his horses and had read about the two different trust types.

I explained that the testamentary trust is created in the last will of the animal owner, springs out of, and only becomes effective upon the death of the owner.

The inter vivos trust, on the other hand, takes effect immediately and thus will be in operation prior to and when the owner dies. This type of trust can avoid all of the delay between the owner's death and the probating of the will and subsequent functioning of the trust. It is also effective in emergency or temporary situations.

Instant money may be available to provide for all of the need of your pets.

In addition, the inter vivos trust can be easily amended or changed.

The downside of the inter vivos trust is generally that is it is more costly and takes longer to prepare than the traditional trust that is included as the normal process in the estate plan.
 

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San Diego Estate Planning Lawyer, Roy M. Doppelt's has a good post on Seven Reasons to Have a Pet Trust.

The first two reasons are here:

   "1. You have pets with a long life expectancy. Some pets are almost sure to outlive you. Birds and reptiles have exceptionally long lives. Some turtles can live almost 100 years. A macaw for example can live to be 80. Horses have a life expectancy of twenty to thirty years.

   2. You live alone. If you live alone with your pet, you need to consider who would step in and care for your pet if something happened unexpectantly to you."

Go to his website to read the rest of his reasoning.

If one of his ideas will move you to act on these issues, you and your pets will be much better off for your actions.

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When you set up your Pet Trust, you need to consider the total amount of money that you will need to adequately fund the trust.

This will include calculations for yearly food, supplies and veternarian bills.

Alternatively, there may be costs for boarding, for pet insurance or to pay the caregiver or the Trustee.

Do not forget the possible costs of liability insurance.

This insurance should be purchased by the Trustee to protect the Trust assets, the Trustee, and the caretaker from potential liability for money damages that may be caused by your pet.

Whether accidental or by design, your pet may cause harm to property or to individuals.

Plan ahead and protect the Trust that you have established to protect your pet.
 

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I was told by a lawyer (not my lawyer) that a pet trust and a living trust are one in the same. He said they both have the same provisions.

He said by slightly changing the words in a few paragraphs, 95% of the trust articles and the length of both trust are nearly the same.

I am writing to get your opinion, not to try and prove anyone wrong.

1. If the lawyer is correct, and I already have a living trust, could I use that same document as a template, and have my lawyer draw up a pet trust for my pet?

2. Do I need a living trust and a pet trust or can I amend my living trust to take care of my pet?

3. If I can protect my pet by adding an amendment to my trust, what would you charge to draw up the amendment?

4. Can I provide for the care of my pet in my durable power of attorney, or should I have a separate document for that?

Thanks

Billie

Billie, I am not trying to avoid any of your questions or issues, but I cannot begin to answer your inquiries.

Each individual’s estate plan, financial needs and family situation varies tremendously.

A living trust, a trust, a statutory pet trust and a common law trust are very different entities.

You should discuss all of these issues with your attorney after he or she has had the opportunity to secure the necessary information and background to give the proper advice and guidance.

Idle conversation with an attorney unfamiliar with your situation is like securing medical advice on how to set your own broken bone from the internet.

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Why do I need to hire an attorney?

I can just go download the form from the Internet and fill in the blanks.

Each day attorneys all across America hear this familiar refrain from potential clients.

Estate planning documents for pet owners are no different.

You need to consult your professional adviser if your want the documents to be legally correct and binding.

 One example of this assistance is provided by Attorney Rachel Hirschfeld.

Ms. Hirschfeld has extensive experience in pet protection documents and stresses the need for caution and expertise when they are prepared.

   "First of all, the word “incapacity” should never be used when filling in pet protection documents to describe the owner’s possible mental state because it may trigger, or be used as evidence in, a court proceeding. Specifically, the pet owner may become unable to care for one or more aspects of the pet’s life, yet not be legally incapacitated. For example, an arthritic owner may want the pet guardian to begin acting, in a limited role, simply because he can no longer adequately walk the dog. Another owner may want the pet guardian to act because she has difficulty remembering whether or not she fed her cat. Neither of these examples should generate a court appointed guardian."

Listen to the professionals.

Follow the advice of your attorney.

Do not try to prepare your own legally binding documents from a generic download from an unknown website.

For yourself…or for your pets.
 

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 I live in the Jayhawk state of Kansas, the home of the 2008 National NCAA Basketball Champions. Any information on a pet trust for my cockatoo, Benke?

Laurie,                                                             Agra, Kansas

 
Laurie, the State of Kansas has a Pet Trust statute that was enacted in 2003. The trust language is very short:

   "(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 animal 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. Except as otherwise provided in the terms of the trust, property not required for the intended use may be distributed to the settlor, if then living, otherwise to the settlor's successors in interest."

It is interesting, in that the statute states, that a trust can be created for an animal and does not specifically refer to a “pet” or “companion animal.”

Anyone for an elephant trust?

Contact an attorney and your financial advisers and begin your estate planning for Benke
 

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In May of this year, I wrote here that Delaware had no statutory Pet Trust, but that there were other options available for estate planning for pet owners, including the traditional pet trust

Now, Delaware has joined the ever growing list of states with a Statutory Pet Trust.

Professor Gerry W. Beyer is a faculty member of the Texas Tech University School of Law. Professor Beyer summarized the new legislation as follows:

   o A trust for the care of one or more specific animals living at the settlor’s death is valid.
   o The trust ends upon the death of all animals living at the settlor’s death which are benefit by the trust.
   o The settlor may name a trust enforcer.
   o If the settlor did not name an enforcer (or if the named enforcer is unwilling or unable to serve), the Court of Chancery may appoint an enforcer.
   o A person with an interest in the animals may petition for the appointment or removal of an enforcer. This interest cannot be merely a general public interest; the petitioner must have an actual interest in the specific animals covered by the trust.
   o Trust property may be used only for its intended use.
   o When the trust ends, any remaining property passes according to the terms of the trust.
   o The settlor (or other owner of the benefited animal) may transfer ownership of the animal to the trustee upon trust creation or thereafter.
   o If the intended owner disclaims, the trustee becomes the owner unless the trust provides otherwise.
   o The trustee must provide the animal with the care the settlor directs in the trust or, if the settlor did not provide instructions, the care that is reasonable under the circumstances.
   o The trustee may employ agents to provide care to the animal and pay for the care from the trust property.
   o The term “animal” is broadly defined to be “any nonhuman member of the animal kingdom.”

Interestingly the statute also states that "Plants and inanimate objects are not included. "

The entire statute can be found here.

Pet owners in Delaware now have more options than ever to plan for the future care and well being of their pets.

Use the tools that are available to you.

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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.

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We have discussed before, here, that one issue to consider as a key component of your Pet Trust drafting is the final disposition of your pet.


After you are long gone, eventually your pet will also die and someone or some entity will be responsible for following the final directives that you have set out in your Pet Trust or will.

We usually talk about two options after death; burial or cremation.

However, recently the web is a buzz about a new option…dissolving bodies in lye and flushing the brownish, syrupy residue down a drain.

BioSAFE Engineering LLC, located in the small town of Brownsburg, Indiana, is producing cylinders for a process called alkaline hydrolysis.

According to the BioSAFE website…

...Alkaline hydrolysis is a process of an elevated temperature and pressure to convert the proteins, nucleic acids, and lipids of all cells and tissues, as well as infectious microorganisms, to a sterile aqueous solution of small peptides, amino acids, sugars, soaps, and electrolytes. The alkali itself is consumed in the process by generating the salts of the hydrolysis products. The only byproducts of the process are the mineral constituents (ash) of the bones and teeth of vertebrates. These are soft enough after the organic matter has been degraded to be easily crushed (even by bare hands) and recovered as calcium phosphate powder (sterile bone meal).

   The WR2 Tissue Digestor™ consists of an insulated stainless steel pressure vessel with a manually or hydraulically clamped lid. The unit is supplied with a basket to contain bone remnants. All wetted parts are 316-L stainless steel alloy, and all vessels are ASME pressure rated and certified. All electrical components are built according to NEMA standards. The system is fully automated; allowing unattended operation after the unit is loaded...

What does this mean?

The equipment that they manufacture provides the access for a process that converts animal, human, and microbial tissues into a sterile, neutral, aqueous solution suitable for disposal to a sanitary sewer.

Apparently the time and cost for this procedure depends on the size and weight of the human or animal being processed.

The Associated Press recently reported in a story by reporter Norma Love that


..."No funeral homes in the U.S. — or anywhere else in the world, as far as the equipment manufacturer knows — offer it. In fact, only two U.S. medical centers use it on human bodies, and only on cadavers donated for research.

But because of its environmental advantages, some in the funeral industry say it could someday rival burial and cremation.

"It's not often that a truly game-changing technology comes along in the funeral service," the newsletter Funeral Service Insider said in September. But "we might have gotten a hold of one."

Currently, only the states of Minnesota and New Hampshire have legalized this process for humans.

Apparently, some 40 to 50 facilities use the cylinders developed by BioSAFE on human medical waste, animal carcasses or both. The users include veterinary schools, universities, such as the University of Florida (for cadavers) pharmaceutical companies and even the U.S. government.

The liquid residue from human tissue and animal carcasses can simple be poured down the drain.

I am not, in any manner, advocating the use of the process.

The thought of pouring my pet down the drain is a little appalling.

However, many people retain the ashes from a cremation of both humans and pets and place them on the mantle or a shelf.

I am not sure how much different this would be…a little decorative bottle, rather than an urn.

I don’t know…

It is your choice.

I am just presenting another viable option for your consideration.

Estate planning for your pet. Think about it, discuss it, make some decisions and then act on your plan.

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Although pet lovers in Delaware have been trying for over five years, the legislature has consistently failed to pass a Statutory Pet Trust in that jurisdiction.

Nevertheless, pet owners in Delaware are not out of options in the event that they want to provide estate planning for their pets.

Professor Gerry W. Beyer is a faculty member of the Texas Tech University School of Law. Professor Beyer is an invaluable source and resource for all involved in the field of estate planning for animal owners. His website is full of updated information regarding this area.

A prolific author and public speaker, Dr. Beyer writes that the “traditional pet trust” is effective in all states, even those without the Statutory Pet Trust.

According to Professor Beyer,” Many pet owners will prefer the traditional pet trust because it provides the pet owner with the ability to have tremendous control over the pet’s care. For example, you may specify who manages the property (the trustee), the pet’s caregiver (the beneficiary), what type of expenses relating to the pet the trustee will pay, the type of care the animal will receive, what happens if the beneficiary can no longer care for the animal, and the disposition of the pet after the pet dies.”

If you live in a state that has not authorized a specific Statutory Pet Trust, you can still plan to provide for the care of your pets with the preparation of the correct legal documents. There are alternate methods that will be accepted and approved by the courts.

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The American Society for the Prevention of Cruelty to Animals ( ASPCA)  is another invaluable site to reference estate planning needs for your pet.

Kim Bressant-Kibwe, Esq. the ASPCA Trusts & Estates Counsel offers assistance to attorneys, financial advisers and executors on all aspects of planning.

Ms. Bressant-Kibwe writes,
“…A pet trust is a legally sanctioned arrangement that provides for the care and maintenance of one or more pets in the event of their owner’s disability or death. The person who creates the trust is commonly referred to as the ‘settlor’. The person who is entrusted with the funds is called the ‘trustee’. A trust can take effect either during a person’s lifetime or after their death. Typically, a trustee will hold property (cash, for example) “in trust” for the settlor’s pet or pets. When the time comes, the trustee will make payments on a regular basis to a designated caregiver. In some states, the trust may continue for the rest of the animal’s life or for 21 years, whichever comes first. Other states allow a pet trust to continue for the rest of the animal’s life without regard to the 21-year limitation. This is especially advantageous when planning for companion animals such as horses and parrots, who have longer life expectancies than cats and dogs.”

She suggests that you contact your attorney to discuss the needs and future estate plans for your pets to establish a pet trust.

Additional areas of concern that she notes that you, your family and your attorney need to consider include;

    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.

The ASPCA is on one of the many valuable sources of information available to the public regarding the estate planning process for your pets.

If your advisers need assistance or direction, you can help show them the way.

 Be proactive in your life.  Make your choices, plan and then proceed,

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We recently, visited the  responsibilities of the Pet Trustee, see here and determined that their duties mirror those of other Trustees.

In addition to the restrictions imposed in the Trust Agreement , we noted that the Uniform Trust Code also sets out specific expectations for the Trustee.

What happens if the Trustee fails to adhere to the restrictions and steps outside the parameters of the power structure?

If a Trustee is believed to have breached their duties under the Trust Agreement or threatens to do so, what ability does the Court have to control the actions of the Trustee?

Under the common law there were limited remedies available for a breach of duty action again the Trustee. Only the Beneficiary and any Co-Trustee could bring the action and it was a matter for the Court to review. 

The legislatures have now provided in most states, that others may represent a Beneficiary if legal action against the Trustee becomes necessary.

In the case of a Pet Trust, the Pet Caretaker would be able to bring an action of the behalf of the Pet.

Generally the Court can order the Trustee to do any number of things, including ordering the Trustee to perform the Trustee’s duties as set out in the Trust or to stop the Trustee from committing a breach of that agreement; order the Trustee to repay money or restore property to the Trust and order the trustee to account for all assets.

In some circumstances the Court can suspend the activities of the Trustee or even remove them from their duties or deny them any compensation for their work.

Many states have also written specific remedies that are available if a Trustee is in violation of their duties. Usually, these remedies are contained within the State's Trust Code and are identical or closely similar to those of the Uniform Trust Code.

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Pet trusts, which had their beginnings in the late 1980’s, have become widely accepted in recent years. Thirty-nine states and the District of Columbia have specific Pet Trust statutes on their books and there are other forms of documentation that can be prepared to provide for your pets in those states without Pet Statutes.

If you die without making advanced and sufficient plans for your pets, they will probably end up in a shelter and eventually euthanized.

According to the Human Society of the United States, HSUS, some 6 to 8 million cats and dogs will enter a shelter this year and nearly half of that number or 3 to 6 million will be euthanized.

As many as 25 percent of families with a pet have provided for their animals through wills or trusts, said Sara Amundson, executive director with the Humane Society Legislative Fund. "People really consider pets as members of their family," she said.

When should you begin your planning for your pet trust or the use of a will to determine your pet’s future care?

Owners should start thinking about establishing a trust "the minute" they acquire an animal, recommended Kim Bressant-Kibwe, trusts and estates counsel with American Society for the Prevention of Cruelty to Animals Bressant-Kibwe. ASPCA,

"Life isn't guaranteed to any one of us," she said. "People are particularly interested in pet trusts because they reach beyond the grave."

"Pick the right person and hope that when the time comes that they'll have enough integrity to follow your wishes," Bressant-Kibwe said. "Leaving a little money for them sweetens the deal."

Estate planning for your business, your family and your pets is essential because none of us knows what tomorrow may bring. We make plans to try to minimize the uncertainty, reduce the stress, eliminate the chaos and ease the fear of sudden life changing events.

Estate planning for your business, your family and your pets should begin today.

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