A Pet Trust Or A Clause In A Will?
I am often asked about the difference between a pet trust and the use of a will for estate planning .
Clearly 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.
Remember over forty states have a statutory pet trust on their books. A much more effective and efficient document for your pets.
Can I leave My Pet To My Veterinarian?
I am trying to begin my estate planning for my pets. I want to have my vet take care of my boxer, Max after I die. Is this a good alternative to preparing a pet trust?
Bob Lewisville, Colorado
Bob, this is an option that is available to you. You can leave Max and enough money for his care to your veterinarian or animal shelter.
However, keep in mind that Max will probably live the rest of his life in a clinic or shelter-like situation
He will not be a part of a family and will not receive the same amount of love and attention that he has found in your home. Carefully weigh these differences before you make your decision for Max.
How Much Should You Pay A Pet Trustee?
This week, I had the pleasure of meeting with a group of estate planning attorneys and financial advisers in Naples, Florida, to exchange ideas and then to present a seminar on Estate Planning for Animal Owners.
The two main areas of concern were the payment of trustee fees and the amount of money needed to fund the trust.
I discussed the first issue recently in a post.
Unless the trust instrument has some type of specific prohibition, the trustee is entitled to "reasonable compensation" for their 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 is received as a trustee, is taxable to the trustee, 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.
Does Your Pet Need Life Insurance?
I spoke with a client recently regarding estate planning for her pets and she asked about life insurance for her cats.
We have found that some companies will provide life insurance coverage for your pet, including VPI Pet Insurance, PetPlan Pet Insurance, PetCare Insurance, National Insurance Company and the Oriental Insurance Company Limited.
Benefits can range from $200 to $750 for non-show pets, while higher limits of $1,000 to $10,000 are available.
I am not sure if the plans are a good value, but the insurance may be worthwhile to some pet owners.
If you have any interest in these policies for your pets, be smart, shop around, compare policies and companies, and then decide if it is right for you.
How Much Does A Pet Trust Cost?
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!
How Do Other Nations Citizens Treat Their Pets?
Do other countries treat their pets the same as we do in the United States?
Betty Lou Lakeland, Florida
Well, Betty Lou, here is one example that is over twenty years old:
In 1987, The member States of the Council of Europe, entered into the European Convention for the Protection Of Pet Animals.
It defined a “pet animal” as any animal kept or intended to be kept by man, in particular in his household, for private enjoyment and companionship.
Under the Agreement, the principles of “Keeping” an animal include:
1. Any person who keeps a pet animal or who has agreed to look after it shall be responsible for its health and welfare.
2. Any person who is keeping a pet animal or who is looking after it shall provide accommodation, care and attention which take account of the ethological needs of the animal in accordance with its species and breed, in particular:
(a) give it suitable and sufficient food and water;
(b) provide it with adequate opportunities for exercise;
(c) take all reasonable measures to prevent its escape;
3. An animal shall not be kept as a pet animal if:
(a) the conditions of paragraph 2 above are not met or if,
(b) in spite of these conditions being met, the animal cannot adapt itself to captivity.
The entire text can be read here.
Some interesting issues and guidelines are presented in this document.
Use a Charitable Remainder Trust in Your Estate Planning For Your Pets
Can I use a charitable remainder trust in my estate planning for my four dogs?
Ron Troy, Ohio
Ron, with a charitable remainder trust, you set up a trust and transfer to it the property you want to donate to a charity.
The charity needs to have a tax-exempt status under the Internal Revenue Code and must be fully accepted and approved by the IRS.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you
The charity then pays to your Trustee of your pet trust, a portion of the income generated for a certain number of years, or for the duration of your pet trust.
When the trust ends, the remainder of the property goes to the charity.
There can be some beneficial tax treatment and this is a very popular type of trust.
Consult your attorney and your accountant before you begin this process.
Are Pets Protected in Domestic Violence Situations?
I have heard that some states include the protection of pets in their protective orders in domestic violence actions. Is this for real?
Janet South Bend, Indiana
Janet, only a handful of states have passed this type of legislation.
The idea is to prevent even the threat of a violent act upon a pet to be used as leverage during domestic situations.
The model legislation for this type of action is below:
The Domestic Abuse Animal Protection Act
§1 Purpose:
The purpose of the Domestic Abuse Animal Protection Act is to allow for the inclusion of animals in domestic violence protective orders.
§2 Protection Orders:
(a) In any domestic violence case, the court shall order that the petitioner be granted the exclusive care, custody, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner of the respondent.
(b) The court shall further order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
§3 Penalties
(a) Any violation of this statute is a Class A misdemeanor.
(b) Any violation subsequent to the first violation is a Class 4 felony.
Contact your state legislator to encourage them to introduce this much-needed law.
Does My Insurance Cover My Pet?
I am often asked about homeowner’s insurance coverage for pets.
As with most instances of insurance, each case is very geographically and fact sensitive.
However, I recently received a tip from California attorney Steven Wegner concerning a previous post:
Mr. Wegner wrote:
One of the points made by Attorney Phillips was that Rottweiler, Akita, Chows and especially Pit bulls are the most likely to bite. This has not gone unnoticed by insurance companies many of which exclude coverage for injuries caused by these breeds.
Homeowners and renters should review their policies to see if their pets are covered and, if not, consider shopping for another carrier or obtaining stand alone coverage for dog bites…
You may visit his website here.
Make sure you have a full disclosure conversation with your own insurance agent for your full protection.
How Much Does It Cost For A Pet Trust?
What is the normal cost for the preparation of a pet trust?
Marin San Francisco, California.
Marin, like any legal service, this is not a question that can be easily answered.
There are many variables involved including some of the following:
A. your geographical location
B. the number of animals that will be placed into the trust agreement
C. the total amount of funding for the trust
D. the duties, responsibilities and the number of trustees, caregivers and trust protectors
E. whether the trust is a stand-alone document or part of an overall estate planning package.
Meet with your attorney and discuss the outline of your needs for your estate planning for your pets. Ask questions and be sure that you have a clear understanding of the total legal costs and the services that you will receive.
I am please that you are completing the estate planning for your pets.
What Are the Costs Of Burying a Pet?
Can you provide some idea as to burial costs for my dog, Jimmy? I am afraid that his time is fast approaching.
Billy Des Moines, Iowa
Billy, I am sorry to hear about your friend, Jimmy.
The website Pet Guardian, provides some parameters of these costs as follows:
Cremation
Typical Costs:
Small Birds $ 55
Pets under 20 lbs $ 100
Pets 20-40 lbs $ 125
Pets 40-70lbs $ 135
Pets 70-90lbs $ 185
Pets over 100lbs $ 200
Lawn Space for burials typical costs:
Small - 20lbs $ 500
Medium- 40lbs $ 550
Large- 70 lbs $ 630
X-Large- 100lbs+ $ 730
Casket:
Small $ 90 Medium $ 120 Large $145
I truly hope that you do not need this information for a long time to come.
What is Veterinarian Malpractice?
When is a veterinarian liable for malpractice on an animal that they treat?
Greg Lynnville, South Carolina
Greg, for an animal owner to recover damages for injury to an animal, in an action based on malpractice, all the following elements must be proven;
(1) The vet was under a duty of care toward the animal in question and had accepted the responsibility to treat the animal.
(2) The actions or nonactions of the veterinarian did not conform to the professional standard of conduct.
(3) The failure to conform to the professional standard was the proximate cause of the injury or harm at issue.
(4) The injury or harm resulted in damages to the plaintiff and not just the animal.
According to David S. Favre of Michigan State University:
"Veterinarians are under no legal duty to treat an ill or injured animal. The decision whether or not to provide a service is an individual decision. A decision to not provide treatment is not malpractice. One case suggests, however, that professional ethics may require some level of attention in emergency situations, but this does not give rise to a legal cause of action. Once the decision to treat an animal is made, the veterinarian has a duty to continue to treat or at least inform the owner of his or her decision to stop treatment of the animal in question."
How Much Money Is Too Much For A Pet Trust?
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".
My Neighbor is Putting His Dogs In Harms Way
My neighbor puts his two collies in the back of his pickup and drives them everywhere. This seems very dangerous. Is he doing anything illegal? I don’t want to cause him any trouble, but I am concerned about the safety of the dogs.
David Miami, Florida
David, I understand your concern, but I am not sure if he is doing anything wrong.
You might look at this statute
Florida Statute 828.12 et seq.
(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.
It is unclear to me as to whether or not this is “cruel or inhumane”, since unfortunately many people also foolishly ride in the back of open pickups.
It would be up to your local prosecutor to pursue this issue.
Can The Pet Trustee Write A New Pet Trust?
We recently lost a dear friend that made me the trustee of her trust. There was a clause in the instructions that made a provision for her cat, Babe. It is very vague in the specifics, but we feel we need a separate trust set up just for the cat. The funds are limited and insignificant, but we want to honor her wishes. Do you have a basic Pet Trust already created or do you specifically draft each individually?
Please let us know what you would recommend.
Thank you,
Brad and Amy Sue
Brad and Any Sue, I am truly sorry for the loss of your friend.
I have no doubt that she cared for you very much in that she named you to be her Trustee, a very responsible position.
There is no such thing as a basic pet trust as each document must be individually drafted for the specific case.
However, before you consider writing a separate pet trust, you need to consult with an attorney, as her trust may prohibit this activity. You may also be required to receive the written consent from the contingent beneficiaries.
Take care of Babe.
Is the Homeowners Association Liable For Dog Bites?
Does our homeowners’ association have any liability if one of the owner’s dog bites a small child outside of the pool area?
Irwin Miami, Florida
Irwin, the Board of Directors of your association has a fiduciary duty to manage and operate the common areas of the neighborhood, including the pool and surrounding area.
A part of that duty is to make sure that all common areas are safe and also to warn of any known dangerous conditions.
If they permit, dangerous dogs to roam in the common areas that are owned and controlled by the association, there indeed may be liability for damages when an injury is sustained.
In your example, the injury is the dog bite.
Is a Pet Trust Better Than a Will?
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.
What is a Pet Trust?
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.
What is the Purpose Clause in a Pet Trust?
After the recent post on a Trust Declaration, I received a call from another attorney who was doing estate planning for an animal owner/client. He asked if a Trust Declaration was the same as a Trust Purpose Clause.
There is a diffenece...
While it is generally not necessary that a specific statement of purpose be included in the trust for your pet, many individual pet owners chose to do so.
One example of a purpose statement is as follows:
…While my pets are alive, the primary purpose of the Pet Trust is to provide for the health, care, and welfare of my pets. Notwithstanding, if at any time, any of my pets suffer from a medical or physical condition or illness and the pet trustee and the pet caregiver determine, based on a written opinion of a veterinary professional who has examined said pet, that it would be more humane to euthanize said pet, then the Pet Panel, Pet Trustee and Pet Guardian are authorized to do so at the expense of the Pet Trust.
The trust purpose statement establishes the overall boundaries of the desires of the pet owner with general instructions to the pet trustee and caregiver.
What Is A Declaration In a Pet Trust?
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.
Who do You Appoint as the Caregiver in Your Pet Trust?
The choice of a Caregiver for your pet is always a tough decision in the estate planning process for animals.
The Caregiver is essentially the person that you choose to be the Guardian of your pet when you cannot.
He or she will be responsible for the daily care and decisions made on behalf of your pet.
The issues of diet, exercise, medical treatment and ultimately even death and this individual must make follow-up decisions.
They should be expected to follow your wishes and directives regarding the care of your pet and must be willing to assume the responsibilities associated with caring for your pet.
Many times another family member will be appointed as the Caregiver. Nevertheless, you need to discuss the situation completely with them in advance, to make sure that they are will to accept this responsibility.
Tough choice.
Use Trusted Professionals for Your Pet Trust
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.
Is Pet Cremation Legal In Maine?
I recently received this anonymous question: I am trying to find laws that regulate pet cremation both federally and state. I live in Maine and I am trying to research what is needed for a license to operate a cremation service, as there is not one locally in my area?
In almost all instances, burial and cremation laws are state and not federal specific.
Pet cremation is legal in Maine, but one would need to consult with their attorney on this
business.
Like any business or occupation, pet cremation is covered by specific statures that must be followed.
Call your attorney, they can provide the necessary guidance to enter into this business.
How Much Should I Pay the Trustee of My Pet Trust?
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.
What Is A Trust Protector For A Pet Trust?
I wrote on Monday about the use of a Trust Protector.
The Trust Protector's role is created by the Trust Agreement and its purpose is to add an additional layer of protection. Usually this person is knowledgeable of the Grantor's financial and personal goals.
Neither the Trustee nor the Trust Protector should be a family member.
The Trust document will set out the role of the Trust Protector, but they will usually include the following powers:
to resolve disputes between co-trustees;
to veto distributions to Beneficiaries and investment decisions;
provide the ability to remove or replace the Trustee;
to change the Trust's situs to take advantage of state law;
to sue and defend lawsuits against the Trust assets.
Discuss the role and responsibilities of a Trust Protector with your legal counsel.
You pet trust can be as expansive or restrictive as you desire.
Can I Trust My Pet Trustee?
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
What Is The Role Of The Pet Panel In A Pet trust?
I discussed earlier this week the use of a Pet Panel in your Pet Trust.
This panel of individuals is appointed in your Trust and has 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.
Your counsel can assist you with a Pet Panel when you complete your estate planning for your pets.
What About An Alternate Caregiver For My Cats?
I have found that is it difficult enough to find someone that I trust that can be a good caregiver for my three cats, Curly, Larry and Moe. It is nearly impossible to think of an alternate caregiver. Any suggestions?
Betsy Lynn Las Vegas, Nevada
Betsy, you are correct. The choice of a caregiver for your cats is like appointing a guardian for your children.
Remember, usually the caregiver will have to sign some type of agreement, contract or document prepared by the Trustee stating that they will provide the proper care for you cats, before the Trustee will even release your pets to the caregiver.
Some people allow the appointed Trustee to nominate an alternate caregiver, if it becomes necessary.
One other method, is to appoint an animal care panel of your friends or family and give them the duties and responsibilities of appointing the alternate caregiver.
No matter what method you choose, this is not an enviable task.
Will a Kennel Provide Emergency Care For My Dog?
I am going to put my dog Ralph, in a kennel while I go on a short business trip. What will happen if he needs medical care while I am away? What if there is an emergency and I am not immediately available?
Tommy Ames, Iowa
Tommy, most kennel contracts will cover these contingencies by providing that they are authorized to perform everyday care and services including, but not limited to, requests to administer specified medications.
In the event of an emergency, the kennel must use reasonable judgment in caring for your dog.
There is also usually a clause in the contract that states that if medical attention is necessary and a specified veterinarian is unavailable, then you expressly authorize the facility to seek emergency veterinary care.
You can also give an emergency medical power of attorney to someone for Ralph, that you trust, while you are gone.
Our experience has been that most facilities that care for animals on a long term basis are very good with their medical attention.
Good luck on your trip.
Why Do Pet Owners Complete Estate Planning For Their Pets?
Why do pet owners complete estate planning for their pets?
How much do owners like their pets?
A recent survey found that there are approximately 130,000,000 pets in the United States.
Some seventy-five percent of all Americans own a pet.
Forty-four percent of all cats receive Christmas presents.
Moreover, more people spend time reading the nutritional labels on food for their pets than for their own food.
Any other reasons estate planning for pets is a growing field?
Do You Have Language For A Pet Living Will?
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.
What Happens if My Pet Trust Runs Out of Money?
What happens if I set up a pet trust and the trust runs out of property before my parrot, Pedro dies?
Pepe Estero, Florida
Pepe, if there is no money, assets or property remaining in the trust, obviously the trustee will not be able to pay for Pedro’s care. The trustee is not responsible and not likely to pay for Pedro out of his or her own pocket.
Depending upon the circumstances and the relationship involved, the caregiver may continue to pay for Pedro' care with his or her own funds.
In case the caregiver is unwilling or unable to do so, you should have a clause in your pet trust that states the name of the person or organization to which you would like to donate your pet.
The last thing that you would want, is that for lack of proper planning, Pedro ends up in a shelter where he might be euthanized.
Why Do I Need a Pet Trust?
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.
How Much Money Is Needed To Fund My Pet Trust?
How much money do I need to fund my pet trust?
This is a common question that I am asked by animal owners, and the answer, of course, is a vital part of setting up a pet trust.
In order to adequately fund the trust, you need to know how much it will cost to take care of your pet and for how many years the cost will continue.
Petfinder.com recently published a good article with a chart from Stephen Zawistowski, Ph.D., the Sr. VP Animal Sciences, ASPCA, of the estimated yearly costs of pet ownership.
Although, I believe that some of the costs projected are very low (for example, he sets the cost of food for a small dog at only $150.00 per year) I believe that it is a good starting point for your review of needed costs and categories for your planning.
Go here, and check out the entire chart.
Help Available for Pets With Cancer
Danny,
I came across your comments today after finding out that our dog has cancer in her lymph nodes from a previous bout of anal gland cancer. She is old with many other medical issues, so our concern at this point is getting her through this final assault as comfortably as is possible. I am looking forward to further information that you might be sharing while looking for a vet who might be able to become involved in this process.
Cheryl Plainfield, Illinois
Cheryl, I am sorry for you and your dog.
I have included some information from another dog lover who responded to a similar question.
..."There's a fantastic Yahoo! support and information exchange group, "bonecancerdogs" that is a great support and information-sharing network. The moderator has to approve your membership, but that usually happens the same day. I think anyone (member or not) can view the files, database, and archives. That group has started a website at www.bonecancerdogs.org that is loaded with information.
One thing, no matter what you decide: the pain of bone cancer is horrendous. It can change your dog's personality. If you see your dog is suffering consistently, do the kindest thing and let her go peacefully. It's very hard, but stay with her if you can. It's the ultimate comfort to have you there..."
Jan Matthew Tamanini
Hopefully, this will provide some useful information for you and give direction to the resolution of this terible situation.
Alternatives to Individual Caregivers in a Pet Trust
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.
Anti-Stalking Statute Can Include Domestic Animals
I recently heard that animals might be included in some laws outlawing stalking. Can this possibly be true?
Jeff San Diego, California
Jeff, there are a handful of states that do include domestic animals and livestock in their respective stalking statute.
Missouri, for example, has the following definition:
Crime of stalking--definitions--penalties.
565.225. 1. As used in this section, the following terms shall mean:
...(2) "Credible threat", a threat communicated with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety, or the safety of his or her family, or household members or domestic animals or livestock as defined in section 276.606, RSMo, kept at such person's residence or on such person's property. The threat must be against the life of, or a threat to cause physical injury to, or the kidnapping of, the person, the person's family, or the person's household members or domestic animals or livestock as defined in section 276.606, RSMo, kept at such person's residence or on such person's property; …
This statute was enacted in 2008 and I believe that it was the first of it’s kind in the United States.
Tax Issues With Pet Trusts
Are there any tax concerns to address with estate planning for animal owners?
Dottie Piqua, Ohio
Dottie, indeed there are…
We always recommend that you involve your CPA or tax adviser when you are planning for your pets.
Depending upon the type of trust or will clause that you use and the state where you reside, there may be gift, income, inheritance or estate tax consequences involved with this estate planning.
These various taxes may be assessed against either the Settlor of the Trust, the Trustee, the Caregiver or the Estate, via the Executor.
Careful tax planning is essential with any form of estate planning.
How Many Pet Owners Actually Prepare Pet Trusts?
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.
Looking For a Solid Trustee for Your Pet Trust?
I recently had the pleasure of presenting a Florida Bar CLE class entitled “Estate Planning for Animal Owners,” to a group of attorneys, animal lovers and supporter of the Humane Society of Naples.
The gracious host was Jennifer R. Figurelli of Comerica Bank.
As you are aware, I do not endorse pet products, websites or promoters.
However, Jennifer is a true animal lover, a Trustee of a pet trust and just happens to be a Vice President and a Trust and Estate Administrator for Comerica.
If you have any questions on the administration of your pet trust or are considering the appointment of a pet trustee, you should be confident of any assistance that Jennifer can provide.
What is a Pet Living Will?
I recently read an article about a Pet Living Will. Can you explain what it is and what it is used for?
Tony T. Palm Island, FL
Tony, A Pet Living Will is essentially the same as a Living Will for people. A living will is a legal document that attempts to set up your directives and choices if “my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.”
A Pet Living Will is a statement of intentions that you, as the owner, direct for your pets, in the event you are unable to make decisions for them. It sets out the choices that you have made for the medical treatment of your pets and instructions for the veterinarian.
In some cases, this is also combined with a Emergency Power of Attorney for your pets.
In effect, it is a written road map for the medical plan for your pets.
Pets in American Samoa
I am going to spend a year working in American Samoa. Is there any reason that I should be concerned about taking my beagle, Ralph along for the stay?
Tommy T. Indianapolis, Indiana
That is very interesting, as I have a nephew who recently went to Pago Pago to work.
Small world.
This U. S. Territory, with a population of about 60,000, is located in the South Pacific Ocean and, as you might expect, does not have many animal related laws.
But, you do have to follow some rules.
AM. SAMOA CODE ANN. § 25.1605 (2004) Confinement areas for animals to be kept sanitary:
All poultry houses, yards, coops, pigeon runs, rabbit hutches, dog kennels, pens, barns, stables, or other structures or enclosures for any fowl or animal shall be kept clean and free from any accumulation of excreta decayed food and filth of every kind. All such structures and enclosures shall be maintained in a clean and sanitary condition.
In other words, keep your yard or dog area clean.
Seem reasonable enough.
Enjoy you trip.
There Are Many Ways To Fund A Pet Trust
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.
Are Pet Sitters Licensed?
I am looking for a pet sitter for my two dogs Buster and Billie. I personally know some neighbors that provide this service. I have read some information on your blog and am curious as to the issues of bonding and insurance for the protection of my pets.
Tommy East Lansing, MI
Tommy, unfortunately most state do not have any specific regulations regarding pet walkers or pet sitters. It is probably not even necessary to have a business license in most jurisdictions.
I found some excellent information for you to review at Petsitusa,com.
They discuss bonding, licenses and insurance:
Insurance
Pet sitter liability insurance works much like any other insurance. It covers accidents that may affect the client’s pets or property while the pet sitter is on an assignment.
Bonding
Bonding is most appropriate for companies that hire employees. A fidelity bond (or dishonesty bond) usually insures a business in the event that an employee steals from a client. If this happens, and the employee is found guilty of theft, the bonding company will pay for the stolen items. Many sole-proprietors are bonded, but this is mostly for their clients’ peace of mind.
Licenses
A business license and a professional license are quite different, and anyone who hires a pet sitter should know what those differences are.
You can read the rest of the article here.
Pet sitters or walkers have a great deal of responsibility for your pets.
Make sure that you know these individuals and are comfortable with their skill levels and concern for your pets.
How Much Money Is Needed To Fund A Pet trust?
I am often asked how much money is enough to adequately fund a pet trust.
Of course, there is no easy or simple answer.
There are many variables involved in the amount required and it certainly depends upon the type of life style that you anticipate for your pet and the specific animal involved.
Your pet turtle may live for 120 years and your parrot for 80, while your little mouse Michele, will provably have a relatively short time here of about four years.
I you want to review some guidelines for the life span of various animals go here and look.
It may provide some guidance to the answer to this difficult question.
What Happens When the Pet Trust Goes Bust?
What happens if the money that I set aside for my dog Lenny in a pet trust runs out before Lenny dies? Does the Trustee or Caregiver have to pay monies out of their own pocket?
Gina Las Vegas, Nevada
If that happens, Lenny will probably, unfortunately be turned over to a pet organization or euthanized, unless someone volunteers to adopt him.
Fortunately, at least, the trustee or caregiver would not be obligated to pay for any of Lenny’s expenses. An adequately funded trust will avoid this problem.
What Do You Think Of Renting A Pet?
Can you rent a pet?
Yes.
Should you rent a Pet?
Well, obviously opinions vary.
FlexPetz is probably the pioneer in the commercial field of pet sharing or, more specifically, pet rentals.
Started in 2007, the FlexPetz website sets out the basic premise of their business
"FLEXPETZ is a shared dog ownership concept that provides our members with access to a variety of FLEXPETZ dogs. All FLEXPETZ dogs complete obedience training and some FLEXPETZ dogs are certified as therapy dogs.
Through the FLEXPETZ shared dog ownership concept, members can spend from just a few hours to a number of days with each of our dogs. FLEXPETZ dogs are available in varied breed sizes to ensure compatibility with our member's individual lifestyles and unique circumstances."
Apparently, not everyone agreed with the program.
FlezPetz is now closed, due to legislation passed in Boston.
The website explains as follows:
" In July 2008, the company put operations on temporary hold. Since launching in early 2007, the concept, while often misunderstood (or deliberately maligned as part of the agenda of others), has been a great success.
FLEXPETZ is seen by many sensible and intelligent animal lovers as a revolution in dog adoption, and has been well supported. It has helped dogs and families, and has been a financial success. However, early in 2008, politicians from Boston decided to mount a campaign specifically targeting FLEXPETZ. Their agenda was to bring in a law "banning pet rental". The proposition was introduced by these elected politicians who NEVER spoke to the company, or visited our facilities, or met our dogs or spoke with our members. If they had, they would have quickly realized that FLEXPETZ is not a "Blockbuster for dogs", but a new way of approaching responsible dog adoption and ownership.
Although this law in Boston was passed, the legislature's failure to contact FLEXPETZ ensured that the law that was brought in is ineffective and a waste of taxpayer's money - and is likely to lead to the death in shelters of hundreds of dogs that could have been placed in homes by FLEXPETZ. However, the actions of these politicians (supported by the likes of the MSPCA who perhaps fear that this new adoption model might affect their own bottom line) did come at a time when our company was ready for expansion and the pending proposed legislation did halt further investment from our main funder..."
This may have been one of the first, but it will probably not be the last to try this business arena.
What Is An Inter Vivos Pet Trust?
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.
You Cannot Leave Cash To Your Pet
Why do I need to go to the expense of establishing a pet trust for my cat Erica? I should be able to just leave her X amount of dollars in my will. Right?
Betty Lou Pine Island, FL
Betty Lou, the answer to your question is very simple.
Although the attitudes of judges and juries in many states are slowly changing, the basic law is still that your pet is a piece of personal property.
Therefore, since Erica is still legally personal property, it is clear that personal property cannot own other personal property.
If you tried to give cash directly to Erica the result would be a legal impossibility and the gift would therefor be void.
What Happens to My Cat When I Die?
What happens to my cat Alexandra, if I die without any written provisions for her?
Albert Wolf Point, Montana
Albert, in Montana, as in most states, pets are generally treated the same as other personal property.
If you die without a will (intestate) or an appropriate trust, your property will pass according to the state statutes.
That means that Alexandra will go to your heirs (spouse, children or others) as the law directs.
You will have no decision or control in the matter as to who takes care of your cat.
A will provision or a trust can eliminate these problems, as you can name the individual that you want to take care of your cat, when you are unable to do so.
Contact your attorney and they can assist you with this document preparation.
What is The Value of a Pet Dog In Illinois?
<img src="http://www.blawg.com/claimscript.aspx?userid=goater&LinksID=2219">
A recent decision by an Illinois Appeals Court once again focused on the value of a pet to its owners.
Is it merely personal property?
Or something more?
Mindy Leith found the neighbor’s dog viciously attacking her pet dachshund, Molly.
As a result of the attack, Molly suffered severe injuries and after extensive medical services, the veterinarian bill exceeded $4,700.00.
The Leiths sued their neighbors for a recovery of the bills and the Circuit Court ruled that the actual value of Molly, a seven-year-old dachshund, was only $200.00.
Upon appeal, to the Fourth Circuit Court of Appeals in Springfield, Justice Thomas Appleton wrote, that the Leiths “demonstrated how much Molly is worth to them by paying $4,784 for the dog’s veterinary care”, and awarded them the full award of the bills that they had paid.
Reporter Dave Bakke of the State Journal-Register of Springfield, Illinois has more on this incident here.
This question of the value of a pet will continue to evolve and be debated in the public and within the courts.
Personal property or a family companion?
Does Nebraska Have a Pet Lemon Law?
After the article on lemon laws for pets, we had an inquiry from a reader of this blog, from the state of Nebraska, questioning whether the Cornhusker state had such a statute.
Our initial review of the state legislation indicates that, although Nebraska has a Pet Trust Statute and new legislation regarding the licensing of veterinarians, there is no applicable pet lemon law on the books.
Currently only a minority of the states have passed this specific type of legislation.
Talk With Your Attorney
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.
How to Locate a Pet Hospice
Do you have specific suggestions of how to find a hospice service for dogs? We live in the Boston area.
Susan
Susan, I recently wrote about Hospice services for pets here.
A Pet Hospice can provide for the use of specific diets, the use of pain medications, general comfort and hydration for the animals.
Generally speaking, many hospice for human organizations are now offering a similar type of service for pets and companion animals.
I would contact your local agency and discuss the possibilities with them.
Secondly, many humane societies maintain lists of individuals and organizations that provide quality hospice care for pets.
Finally, more and more of your local veterinarians now offer hospice services from their office into your home.
New sources are available every day for your pet, your area should be no exception.
Why do I need a Pet Power of Attorney?
Why would I want to include a Power of Attorney in my estate planning for my lab, Fernando?
Betsy Sarasota, Florida
Betsy, in the event that you would be unable to provide for the care of Fernando, you could authorize an Agent to act on your behalf.
The Power of Attorney would allow the Agent to take emergency and temporary possession and custody of your dog and spend such amounts of your money as may be necessary for the health, care and welfare of Fernando.
The Power can also give the Agent the ability to pay for food, veterinary care or insurance, toys and other recreational activities, and temporary boarding and pet-sitting fees.
It can also specify that the Agent makes sure that Fernando receives the same standard of health, care, and welfare as you would normally provide.
When your emergency has ended, you can rescind the Power of Attorney and return to taking personal care of your pet.
It will only be used in an emergency and is for the protection of you and Fernando.
A win-win situation for all involved.
What Is the Cost of a Pet Trust?
How much would a Pet Trust typically cost?
Billie Bob Crothersville, Indiana
Billie Bob, that is a question that I really cannot answer.
It will depend 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 advisor will be open and clear about the costs of the Pet Trust and how it interacts with the totality of your specific estate plan.
Just ask!
Seperate the Caregiver and the Trustee in Your Pet Trust
I want to appoint my accountant as the Trustee for my Pet Trust because she has a full background and understanding of my financial condition. However, the accountant insists that she should also be the caregiver for Moxy, my terrier, so that she can combine duties to save time. Is this a good idea?
Rex Lavergne, Tennessee
The animal caregiver, custodian or guardian is an important component in the Pet Trust.
Usually a family member or close friend is appointed to this position. Someone who knows and cares for the pet. Perhaps, someone who has a history with your animal.
Professor Gerry W. Beyer has taken this position on the appointment of the Trustee as the caregiver. In 2008, he wrote:
"This is the most important decision because this person will provide the pet’s care. The pet, the prospective caregiver, and the caregiver’s family (human and nonhuman) should make sure they get along. It is important to name alternates in case the designated person is unable to care for the pet. The trustee may be given the ability to select a good home for the pet if none of the named beneficiaries can care for the animal. But the trustee must not be permitted to appoint him- or herself, as this would eliminate the checks-and-balances aspect of separating the caregiver from the money provider."
Heed the words of the experts in this field.
Separate the powers, duties and appointment of the caregiver and the Trustee in your pet trust.
Pet Trusts in Kansas
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
What is The Value of A Guide Dog?
I recently read an interesting exchange between attorneys, regarding the issue of whether or not a guide dog in training, was afforded the same statutory rights, protections and privileges as a guide dog.
Every state has a least one statue regarding the use and protection of guide dogs or service animals as they are often called.
For example, California law is clear in that “Housing providers have an affirmative obligation to engage in an interactive process with a tenant or prospective tenant who requests that his/her service animal be permitted to reside with him/her in the subject housing accommodation and provide that reasonable accommodation, absent a specific legal justification for not granting the request.”
This led me to do a little research on Florida Statutes.
We have discussed here and here the current dichotomy in the courts between the treatment of pets as simply personal property and as a member of the family with emotional value, as well.
Florida Statute 413.081. Interference with or injury to a service animal; penalties; restitution, provides an interesting insight into that argument in that:
"(2) A person who, with reckless disregard, injures or kills, or permits a dog that he or she owns or is in the immediate control of to injure or kill, a service animal commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) A person who intentionally injures or kills, or permits a dog that he or she owns or is in the immediate control of to injure or kill, a service animal commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4)(a) A person who is convicted of a violation of this section, in addition to any other penalty, must make full restitution for all damages that arise out of or are related to the offense, including incidental and consequential damages incurred by the service animal's user.
(b) Restitution includes the value of the service animal; replacement and training or retraining expenses for the service animal and the user; veterinary and other medical and boarding expenses for the service animal; medical expenses for the user; and lost wages or income incurred by the user during any period that the user is without the services of the service animal."
It is interesting that this statute provides for additional compensation to the animal owner, in addition to the actual value (personal property) of the animal.
Another stature that is influencing the changes in pet law?
Maybe pets are not merely personal property after all.
How Much Money Is Needed to Fund My Pet Trust?
I am in the early stages of thinking about a pet trust for my cat, Alabaster. How much money will I need to put into the trust?
Shelby Carmel, Indiana
Shelby, just about anyone that you ask will have a different answer to this question.
Attorney Nancy J. Burns, of the firm of Schwartz Manes Ruby & Slovin of Cincinnati has set the following guidelines:
"To determine how much money to put into (“fund”) your pet trust, consider the following:
• life expectancy of your pet
• cost of current or future medical treatment
• trustee fees
• whether or not to compensate the caregiver
• cost of basic care items such as food, medication, and grooming
NOT TOO LITTLE, NOT TOO MUCH
You will want to set aside enough so that the trust does not run out of funds during your pet’s lifetime, but not so much to cause your heirs to contest your trust. If you put too much property in the trust, a judge may determine that the value of the trust property exceeds the amount necessary to care for your pet and order that the excess property be given back to the person who created the trust or to others named in the trust, or according to your estate plan.
NOW OR LATER
You can fund your pet trust during your lifetime or after your death. Your pet trust needs assets in it to pay for the care of your pet. If you fund your trust during your lifetime there will be assets immediately available to care for your pet if you become disabled or die. If you do not fund the trust during your lifetime and you become disabled, there would be no funds in the trust to care for your pet. If you died before funding the trust, assets may first have to pass through probate causing a delay before your trust receives funds to care for your pet."
For additional information, you may go to her website here.
We will offer differing opinions and attitudes regarding pet trust funding for your review and consideration in the future.
Shelby, at least, you are in the initial stages of planning and that is the key to protecting your pet in the future.
Florida Court Changing Attitude Toward Pets?
We have discussed on many occasions the evolution of the status of pets and companion animals.
They originally were clearly identified as the “personal property” of their owners in the eyes of the Court.
We discussed here that a Naples,Florida couple filed a legal action against their veterinarian for a “writ of replevin” for the return of their dog.
A writ of replevin is a prejudgment process ordering the seizure or attachment of an alleged illegal taking or wrongfully withheld property, goods or chattel (any kind of personal property).
The action of replevin dates all the way back to the common laws of old England and was first used in the thirteenth century. This type of writ is commonly used to take property from an individual wrongfully in possession of that specific property and return it to its rightful owner.
Well, recently a Florida court has provided an expansion of actions for pet owners. (Loli v. Mitvalski)
A Tampa court has held that although the Courts have historically held that pets are mere chattel or personal property, there may be exceptions.
In this case, the owner of a dog incurred over $4,000.00 in vet bills when her dog was attacked by another dog. The Trial Court awarded her the damages for the payment of the bills and the defendant argued that the amount of the award was excessive, as the total value of the injured dog was only $1,200.00.
The Appellate Court agreed with the lower court, upheld the judgment amount and wrote:
"However, as Appellee makes abundantly clear, we are not just talking about a car, a piece of land, or a database. Here, the subject "property" is a pet dog. (We acknowledge that it is not a seeing-eye dog or other specially useful dog). None of the case law submitted takes the instant facts into account. Given the emotional attachment that humans have with their pets, many feel that pets should not be viewed strictly as "chattel," and emerging case law supports a reevaluation of the traditional view...
We do not feel our decision here will open the floodgates of lawsuits seeking excessive damages for injured dogs..."
The legal world of pet owners is changing.
Even in old Florida.
Need a Private Dectective for Your Lost Pet?
The mental and emotional strain of a missing pet can quickly take is toll on you and your family.
There are many organizations to assist you if your pet is lost or runs away.
There are even private pet detectives and private investigators that you can hire, with hourly rates from $100.00 and daily tracking of your pet for $1,000.00 per day.
Missing Pet Partnership is a not for profit organization that concentrates on this issue.
Their website explains their mission.
Missing Pet Partnership is a national, nonprofit organization dedicated to reuniting lost companion animals with their owners/guardians. We offer behavior-based lost pet recovery tips, referrals to lost pet services, and Missing Animal Response (MAR) seminars that train professional and volunteer pet detectives (many with search dogs trained to locate lost pets) to conduct CSI-like investigative searches that bring lost companion a nimals back home.
They can assist you in the location of a pet detective should you need one.
They also offer their MAR seminars in many areas of the country.
The MAR Technician course teaches the basics regarding how and where to search for a lost pet. It is a 5-day course and involves classroom training, dog training, and in some cases participation in a lost pet investigation. Upon completion of the seminar, graduates will be able to immediately start offering fee-based lost pet services like TAR (trap-and-reunite) services to recover displaced cats, shelter checks, neighborhood checks, flyer distribution services, and/or responding with a MAR search dog in an attempt to locate and recover a lost pet. Graduates have the option of using their training to volunteer (e.g. with animal rescue groups, shelters, etc.) or they can offer fee-based lost pet services. The training in this course includes CSI-like law enforcement-based techniques and technologies such as the application of search probability theory, deductive reasoning, strategic planning, Feline Behavioral Profiling, and the use of high-tech equipment like search cameras, amplified listening devices, and humane traps with baby monitors. MAR Technician's are trained and certified to use a combination of snappy snares, calming signals, and a "magnet dog" to attract and capture a panicked, stray (lost) dog.
If you want to volunteer to help other pet owners in distress, learn more from their website.
Hopefully you will never need the Missing Pet Partnership or other similar organization.
But, at least you have the knowledge that others are there to help you during the stressful time of a missing pet.
Coping With The Loss of Your Pet
My cat, Mr. Tuffs, recently passed away. We lived together for 15 years and I am heartbroken. I am so sad I can hardly work, am I just being silly?
Sandra San Diego, California
Sandra, you have my sincere condolences.
You are not being silly at all; the loss of a companion or friend is difficult, at best.
There are numerous ways to help you cope with the process.
The Human Society of the United States has some general tips for assistance:
"While grief is a personal experience, you need not face loss alone. Many forms of support are available, including pet bereavement counseling services, pet-loss support hotlines, local or online Internet bereavement groups, books, videos, and magazine articles. Here are a few suggestions to help you cope:
• Acknowledge your grief and give yourself permission to express it.
• Don't hesitate to reach out to others who can lend a sympathetic ear.
• Write about your feelings, either in a journal or a poem.
• Call your local humane society to see whether it offers a pet loss support group or can refer you to one. You may also want to ask your veterinarian or local animal shelter about available pet loss hotlines.
• Explore the Internet for pet loss support groups and coping information.
• Prepare a memorial for your pet."
You can read the rest of their suggestions here.
Just remember that you are not alone in any grieving process.
Lean on your friends and family.
We all must face the loss of a loved one at some time.
Knowing that, does not make it any easier.
How Much Is Too Much For Your Pet?
We have written extensively about the role of the Trustee and the Caretaker in your pet’s estate planning process, here here here and here.
The more written information and clarification that you can provide for them will only assist the process of caring for your pet after you have gone.
We have also discussed Leona Helmsley’s will and the millions of dollars that she left to her dog, Trouble.
A recent article in the New York Times now reports that the “mission statement” of Ms. Helmsley specifically states that her entire estate, of some $8 billion, is to be used for the care and welfare of animals.
With this much money at stake, we can be assured that the litigation in this probate process is set to continue for years, If not decades, to come.
You can read the entire article, here .
We fully encourage estate and emergency planning for owners of pets and companion animals.
But, we also urge you to use good sense in your planning.
Perhaps, just perhaps, that $8 billion, or a part of it, could be used for a different need or cause.
Just a thought.
Plan well for your pets and plan now.
Trust Protector-A Good or A Bad Thing?
Denise of Merlin, Oregon, had posed a question regarding the definition of a Trust Protector. We turned to Senior Counsel Sharon C. Nelson of Foley & Lardner, LLP, here and here to help us with these issues.
...In the right circumstances, the use of a trust protector can be invaluable in giving the grantor the peace of mind that his intent will be carried out even if the laws or circumstances of named beneficiaries change. On the other hand, granting broad powers to a trust protector can cause unintended results and change beneficial interests that the grantor never intended. Before including a trust protector in any trust document, the grantor should have the opportunity to carefully consider the possible consequences of giving someone the powers he or she is contemplating. Most importantly, if a grantor does decide to add a trust protector to a trust document, the drafting attorney should carefully define and specify the powers of the trust protector, the limitations placed on the trust protector and the intent of the grantor in naming the protector.
When you meet with your attorney and other consultants to discuss your estate planning for your pet, do not forget to talk about a Trust Protector.
Who Should Serve as A Trust Protector?
Denise of Merlin, Oregon, had posed a question regarding the definition of Trust Protector. We turned to Senior Counsel Sharon C. Nelson of Foley & Lardner, LLP, to help us with these issues.
...Technically, anyone can serve as a trust protector. However, in order to avoid adverse tax consequences (for both the grantor and the trust protector), it is generally advisable to name an independent third party as the trust protector. Trustees, beneficiaries or members of the donor’s immediate family are not independent parties and thus, should generally not be named as trust
protectors. Lawyers, accountants, unrelated business-minded friends, brothers, sisters, aunts and uncles of the grantor are often a good choice for the trust protector role. Corporate fiduciaries are not necessarily the best choice due to the conservative view of many corporate fiduciaries which may make it difficult for them to exercise the authority they are granted...
....While there is no set list of powers that should be granted to a trust protector, there are some powers that would be helpful in most situations that the grantor should consider. For example, the trust protector could be given the power to amend the trust to comply with new tax laws or to address any changes in the law or circumstances of a trust or its beneficiaries that would significantly change the tax treatment of the trust or its beneficiaries. In addition, the trust protector could be given the power to terminate the trust or to remove, add or replace the trustee. Other powers could include the ability to change the governing law or to expand or limit the powers of the Trustee. Some powers, however, such as the power to grant, expand, reduce or eliminate a power of appointment, the power to change, eliminate or add provisions regarding the disposition of income and principal or the power to change beneficiaries should be looked at more closely before including them because beneficial interests could be completely altered. Care should be taken to clearly define the purposes of the trust and to give the trust protector ample guidance as to what is expected and allowed and what is not...
We will conclude this review tomorrow.
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.
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.
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.
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.
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.
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.
Emotional Distress Claim for a Pet in Idaho
Is it true that an animal owner may recover money damages for mental anguish for the loss of a pet in Idaho?
Paul Ammon, Idaho
Paul… at least in one case...in 1985, in the case of Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Idaho App.1985), the Idaho Appellate Court reversed a lower trial court that had dismissed a claim for intentional inflection of emotional distress by the owner of an animal that had been killed by another.
In this case, Brown allegedly shot and killed a donkey owned by Gill.
In rendering its decision, the Court stated:
"The measure of damages when personal property is destroyed by the tortious conduct of another is the fair market value of the property at the time of its destruction. Bratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969); Skaggs Drug Centers, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965). In the case of destroyed animals, the majority of jurisdictions use this measure and specifically deny recovery for mental anguish suffered by the property owner. Annot., 1 A.L.R.3d 997, 1010 (1965). We are not persuaded to depart from this general rule."
The Court went on to state;
"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Under this view, a plaintiff may recover for mental anguish if the defendant's conduct was "outrageous" and if the mental anguish suffered was "severe". Hatfield v. Max Rouse & Sons, supra; Rasmuson v. Walker Bank & Trust Company, 102 Idaho 95, 625 P.2d 1098 (1981). In their complaint, the Gills allege that Brown "negligently and recklessly" shot and killed the donkey, that the donkey was both a pet and a pack animal, and that the loss of the donkey has caused the Gills to suffer "extreme mental anguish and trauma." By alleging that Brown's conduct was reckless and that they thereby suffered extreme mental anguish and trauma, the Gills have alleged facts that, if proven, could permit recovery under an intentional infliction of emotional distress cause of action."
The case was order to be returned to the trial court to determine whether or not the Gills could prove their allegations against the Browns.
Thus the door for possible recovery was reopened…
Condo Owner has Pet Issues
We recently received the following inquiry;
Question . .. I reside in a condo that never inforced the rule regarding no pets allowed over 30 lbs. Recently the Association has singled out a few individuals with dogs exceeding the limit. However others with dogs over 30 lbs. are not being harrassed by receiving fines monthly. Is this legal for them to do this. Do those that are being singled out have any rights that protect them?
Sincerely Sandra, Grossmont Village Blues
Sandra, I do not have enough information to answer your question directly and it does depend upon the state where you reside.
However, generally the Condominium Covenants, Restrictions and Conditions or even the Rules and Regulations set out the specific rules for pet ownership.
Pet rules must not be unreasonable, cannot be arbitrarily or unfairly enforced and must be aproved and in place according to the correct procedures and processes.
Certainly, most courts have held that a total outright ban on pets is not an unreasonable rule.
Your question would focus on the unfair or arbitrary selective enforcement of a rule.
The Board or their appointed manager can not chose which rules to enforce or which owners to single out as a violator of those rules.
Rules that are changed to be applied retroactively also may be challenged by the owner.
Citizens for Pets in Condos is a site devoted entirely to this issue. You may want to check them out for some guidelines.
We wrote here about being proactive before you sign a lease or buy a property if you are concerned about your pets.
If you are already living in a place and the rules change, you may have legal recourse.
Finally, you need to speak with an attorney in the area where you reside for advice and assistance.
Kentucky has Options for Statutory Pet Trust
I have a number of hunting dogs that provide both business and pleasure to me and my kids. They actually are a valuable asset of my business. Should I set up a Pet Trust for them?
Bo Paducah, Kentucky
Bo…Kentucky is in the minority of states in that there is no Statutory Pet Trust legislation that has been passed by your Commonwealth.
However, Kentucky was one of the early leaders in recognizing the desire of pet owners to prepare for the future of their pets.
In 1927, the case of Willett v. Willett, 247 S.W. 739 (Ky. Ct. App. 1923) was a landmark decision in that it was the first time an appellate court considered a will contest that arose as a result of a gift to an animal.
In Willett, the testatrix ( the one who wrote the will) devised her entire estate to her sister for life, then to her church with the exception of $1,000.00 which is to be used…
"for the support of our dog 'Dick,' if the interest is not sufficient for him to be kept in comfort, that is being well fed, have a bed in the house by a fire and treated well every day, that the principal be used to such a sum so it will last his lifetime. . . Dicky must have three meals daily..."
The trial court held the clause for Dicky's support to be invalid, because…
"(1) there is no trustee, and (2) a dog cannot take as a devisee under our law."
However, the Kentucky Supreme Court rejected these arguments, and stated that a trust should never fail for lack of a trustee. The court further reasoned that if no trustee was willing or able to serve, the court could appoint a trustee.
In addition, the Supreme Court interpreted the language of the will as creating a trust for the benefit of the dog, not as a gift directly to the dog.
The Kentucky court declared that a testamentary gift for the care of a specific animal is a humane purpose, and thus was valid under a state statute permitting testamentary gifts and trusts for charitable or humane purposes.
Finally the Court, set out its opinion on the difference between a charity and a humane purpose, stating that
"[c]harity extends to every one of a class, while . . . a humane purpose . . . moves a person to take care of or feed a single hungry person, bird or dog."
Thus, the Kentucky Supreme Court upheld the pet provisions in Willett because of an express statutory provision permitting trusts for humane purposes.
Even though you are 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.
We have discussed those options before.
Review them and discuss them with your family, attorney, financial adviser and accountant.
Then make a plan.
Don't Forget to Fund Your Pet Trust
Nathan Gene Stone, Mississippi
Nathan, once you have set up your Pet Trust you need to at least fund it with a minimal amount of money.
For the Trust to take effect, some assets must be transferred into the Trust.
Not everyone understands that the grantor (you as the pet owner) must take some affirmative steps to transfer at least some assets and fund the Trust. Merely executing the Trust itself will not cause the Trust to become funded. You must actually transfer legal title to the Trust.
The transfer is from you as an individual to the Trustee, even if you are also the Trustee.
You need to be clear that any activity that you take is as, “Nathan Gene, Trustee of the Annika the Afghan Hound Trust,” or whatever is the correct designation.
These actions, whether money transfers or whatever needs to be completed on behalf of the Trust and should be by the Trustee and not you as an individual.
You need to discuss all aspects of correctly funding your Pet Trust with your legal counsel to ensure complete accuracy.
The first step is draw up the Trust...then you are on your way to protecting your pet's future.
No Pet Trusts in Connecticut
I live in Barkhamsted, Connecticut and have a two year old Otterhound named Oscar. Can you tell me if my state recognizes pet trusts?
Kacey
Kacey, we went straight to the source on this one.
According to Sandra Norman-Eady, Chief Attorney, during the 2005 regular session of the Connecticut General Assembly, an Act Concerning the Creation of Trusts for the Care of Domestic Animals, was introduced to the legislature.
“The bill authorized trusts for the care of domestic animals that are alive when the person who created the trust dies. It allowed a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, or any other legal entity to be selected as trustee.
Under the bill, the trust would have terminated on the earlier of the following occurrences: (1) when the animal died, or if the trust was created to provide for the care of more than one animal, when the last surviving animal died; or (2) 90 years after its creation.
A person appointed in the trust could enforce it. If no one was named, the bill allowed a court to appoint someone to enforce it. It allowed a person having an interest in the animal's welfare to ask the court to appoint a person to enforce the trust or to remove a person appointed.
The bill specified that trust property authorized to care for an animal could be applied only for its intended use, except to the extent the court determined that the trust's value exceeded the amount required for the intended use. Except as otherwise provided in the trust, property not required for the intended use had to be distributed to the settlor, if living. (A settlor is the person who creates a trust and transfers property to it. ) Otherwise, it had to be distributed to the settlor's successors in interest. The bill permitted a trustee to be designated as the person who received the trust assets when the animal the trust benefits died.
The bill was referred to and voted out of the Judiciary Committee. However, it ultimately died in the Judiciary Committee upon recommitment by the Senate.”
No additional legislation has been passed in this area.
Therefore, Connecticut remains in the minority as one of only eleven states that does not recognize a statutory pet trust.
We have written before however, here , that you can still provide for your pet's future with an inter vivos trust or with a will provision in your current estate plan.
Contact your legislators if your want Connecticut to join the main stream of thought in this area.
With or without a statutory pet trust, you can do estate planning for your pets.
It is the responsible thing to do.
Pet Power of Attorney or Health Care Proxy?
Beau Aliceville, Alabama
Beau… good question.
Your Power of Attorney can specifically acknowledge ownership of any of your pets, provide identification via a v-chip or natural markings and set out in great detail the exercise and feeding habits of Danny (good name by the way). If you become incapacitated, the Agent named in the Power of Attorney will know exactly what regime to follow.
Your Pet Power of Attorney should also grant the Agent the sole and exclusive right to take temporary custody and control of Danny or to appoint someone else, perhaps better equipped to do so. This alternate may be your Vet or a pet hospital.
You need to provide for some type of access to money for the Agent, to take care of your pet when you are unable.
As to your specific question, although I have never personally encountered this problem, I have heard of a situation where a Vet for whatever reason would not accept the Power of Attorney appointment as providing the necessary consent for medical treatment. The Vet advised that he would have treated the animal in an emergency situation, but not otherwise.
As you are aware many individuals have both a Power of Attorney and a Health Care Declaration appointment in their estate planning package for someone to make medical decisions on their behalf for exactly this reason...so there will be clarity and no indecision of treatment.
Perhaps, as out pets move more into the family circle, we will need to provide more complete documentation for third party acceptance.
Sometimes change can be good… and sometimes change can…
No Pet Trust In Delaware?
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.
Yes Virginia, there is a state Pet Trust
Does Virginia have pet a trust law? I am concerned about my little dog, Alice, who is an Affenpinscher.
Maybelle, Manassas, Virginia
Yes, Virginia…sorry I could not resist…yes, Maybelle, Virginia does have a Pet Trust Statute. However, I have to admit that I knew that, but I had no idea what an Affenpinscher was until I looked it up.
The Animal Welfare League of Arlington Virginia reported that in 2006,
“Virginia proudly joined 37 other states with a pet trust statute. This means that Virginia is also a little late to the game, but at least now Virginians can rest assured that their furry friends will be taken care of in case something ever happens to the pet's guardian. Pet owners may now designate a caretaker for their pet(s) and a trustee who ensures that the money is spent on the pet. Previously, if a pet's guardian passed away and left money in their will to take care of the pet, anyone could contest the provision and the pet could find himself in the shelter -- no cash, no home, no guardian. This statute puts an end to this injustice."
In its 2005 Session, the Virginia General Assembly enacted Senate Bill 891, the Uniform Trust Code (“UTC”), with modifications.
It provides that 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.
The instrument creating the trust shall be liberally construed to bring the transfer within the scope of trusts governed by this section, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor.
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.
Except as ordered by a court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or surety bond shall be required by reason of the existence of the fiduciary relationship of the trustee.
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 shall be distributed to the settlor, if then living. If the settlor is deceased, such property shall be distributed pursuant to the residuary clause of the settlor's will if the trust for the animal was created in a preresiduary clause in the will or pursuant to the residuary provisions of the inter vivos trust if the trust for the animal was created in a preresiduary clause in the trust instrument; otherwise, such property shall be distributed to the settlor's successors in interest.
Those of you that are regular readers of this Blog will certainly note that the Virginia Pet Statute outline is very similar if not identical to other state Pet Statutes.
What is next in caring for your Pet?
Is this a vital part of the estate planning process for the future care of your Pet?
Little wool sweaters for your dog.
Diamond studded collars for your little kittens.
Expensive toys, fancy organic, home made foods, private beds, car seats, travel carriages for airplanes...
What is next for your favorite Pet?
Well, according to Mark Nash, the author of four real estate books, the “What’s In, What’s Out with Home Buyers in 2008”, includes pet showers.
That's right, pet showers.
Nash writes that the kitchen or work sink in the garage are out for animal baths.
Dedicated pet showers are an emerging trend. Be it in a mud or utility room, a garage corner or the basement, animal lovers, especially dog owners want a place to clean their favorite pooch after a visit to the neighborhood dog park.
Nash explains that the common dog shower features a 3’ by 3’ shower base surrounded by ceramic tile 4’ up the wall.
Pet showers are all about the convenience for Fido to step in and eliminate the master’s need to lift.
No information has been provided as to how much this little Pet Spa will add to the price of your next home.
What about Crabby?
I am in the early stages of my future planning for my cockatiel, Crabby, who is three years old. I am told the she may well live until her late twenties and I am in my late sixties. Although I love her dearly, like most cockatiels, Crabby is very messy and requires a lot of “hands on” time and I don’t think that she will be easily placed after I am gone. Any suggestions?
Adalina, Ocate, New Mexico
Adalina…we have discussed in this blog on numerous occasions that many individuals choose to have a pet sanctuary or pet retirement center take care of their pets after they pass away.
Perhaps they have no family or friends that are willing or capable of caring for the pets.
One of the downsides of this choice is the cost involved.
We recently spoke with a pet sanctuary and recovery center representative who works for one of the largest sanctuaries in the United States. He advised that the fee for them to take in one pet is $10,000.00 and then an additional $5,000.00 for each successive pet.
In addition, the personal representative of the estate or a family member is responsible for the costs of transferring the pet to the center.
The fee can be paid through a trust or a clause in the will of the pet owner or by a life insurance policy with the center as the beneficiary or obviously, by a straight cash payment.
Arrangements for the pet and the transfer and payment for the services are agreed to in advance.
In exchange for the fee, the center will provide for the shelter and feeding of the animal as well as all medical care that will be needed. They will also attempt to place the pet into a new home as soon as possible.
If you have no other choice, a professional center may be one option for the care of your pet after you are gone.
An expensive option.
How did you become involved with estate planning for pet owners?
I am curious as to how and why you became involved in estate planning for pet owners. I have been a practicing attorney for over thirty years and although it was in the corporate field, I have never met another attorney who even talked about this area of the law.
Mike, Atlanta, Georgia
Mike…my initial interest in this area actually began about seven years ago. Our firm was representing a very wealthy family on all of their business matters and I had been trying for a long time to meet with them to discuss and combine strategic business and estate planning.
They finally agreed and at the initial estate planning consultation conference, the wife, Pam, mentioned that they had two Abyssinian cats and asked what they could do to provide for them in their estate planning.
A young associate who was a part of the conference, burst out laughing and said,” You want to leave a bunch of money to some cats? ”
With that comment, both clients stated that they considered the cats a part of their family and that they would be more comfortable with counsel who understood their feelings…and that they had no interest in continuing with the meeting.
I then began to ask other attorneys if they regularly included pets as a part of their estate planning. Even though many of them were pet owners, not a one of them had even discussed pets with their clients.
With an estimated 65%-75% of all homes in the United States having pets, it was not hard for me to determine that estate planning for pet owners would be an area of growth and future interest for attorneys.
Finally, you might be interested to know that Georgia is one of the few states that does not yet have a Statutory Pet Trust. However, there are other legal methods available to provide for your pets in Georgia and, if you request, we can provide additional information in those matters.
What information does my pet caretaker need?
I have an idea as to the person that I want to appoint as the caretaker for my older Siamese cat, Sammy. Unfortunately, Sammy has some health issues including degenerative joint diseases. What information will the caretaker need in order to provide for my pet when I cannot?
Alva Everglades City, Florida
Alva…After you have carefully chosen the caretaker for your pet, you need to begin to assembly the various pieces of information that you will need to pass along or make available to that individual.
This package needs to be kept in a location that is readily known and accessible (in a safety deposit box at a bank that needs a signature for access is a very bad idea) to your family and the especially, the caretaker.
Cats, suggest that at a minimum, you should consider the following items as information to provide to your caretaker.
• Inoculation and medical records
• Medical conditions
• Spay/neuter certificate
• Veterinarian's phone number and other information
• Special foods and feeding schedule
• Are they an inside or outside cat
• Daily schedule:
what time pet wakes up
any special activities during day
bedtime
• Favorite type of petting or brushing
• Fears
• How to calm a cat when frightened or aggressive
• Where the cat likes to sleep
• Do they travel well in cars
• Will they walk on a lease
• Special play activities that your cat enjoys
• Include something that has your smell on it (scarf or shirt)
• Include photographs from cat's past (this can help bonding with new owner)
This list is by no means complete and certainly you will have additional ideas of your own, based upon the interaction between you and your pet.
Hopefully, the person that you have chosen is already familiar with Sammy and his personality and is willing, if not eager to assume the necessary duties and responsibilities that are required.
Can I put my pet in my will
I have been reading various articles on the subject of pet trusts. I want to fully provide for my Bengal cat, Bangle, and I already have a will. Can I just add some type of addition to this will to take care of Bangle if necessary?
Cyndi, Indianapolis, Indiana
Cyndi...certainly there are some other alternatives to take care of Bangle besides setting up a Pet Trust. You can leave a direct bequest in your will. But remember that the courts, unlike you, still consider your pets to be personal property and like all of your other assets, they can be left upon your death to a friend or family member.
You can provide for a specific amount of money to take care of your pet and provide specific instructions, to a caretaker, for the care of Bangle. If the caretaker does not provide the appropriate care, then they are not entitled to the money. Someone needs to be appointed (personal representative?) to make sure that the money is being used as you intended, That is, for the care of your pet.
An addition to your will or a specific will clause are relatively simple methods to protect Bengal; however, there are some pitfalls to this method of providing for the future of your pet.
First of all, as it is a clause in your will, it will not take effect until your death. Therefore, in an emergency situation, it would not provide for the care of your pet.
Secondly, the courts have held that if you provide…let's say...a clause that gives $5,000.00 to my friend Mary Ann to take care of Bengal upon my death… and Bengal dies before you...if you have not changed your will...Mary Ann is probably still entitled to receive the $5,000.00 upon your death.
Thirdly, the probate process involving your will and the distribution of your assets will normally take a few months to conclude.
Along with the appropriate will clauses, there are other legal methods available to provide for your pets in Indiana. For almost three years, Indiana has had a Statutory Pet Trust, established by the legislature, that allows for the creation of a trust for your pet during your lifetime.
If you have additional questions regarding will clauses or Statutory Pet Trusts in Indiana, we can assist you in those matters.
What is a pet trust?
I was at a dog park the other day with my Golden Retriever, Mulligan, who was enjoying his romp in the daily rain. I overheard two ladies talking about something called a pet trust. I have heard of this from other pet owners, but do not know what this is? Can you explain the idea of a pet trust?
Dono, Seattle, WA
Dono, sure… a pet trust is a legally binding document that you can create that sets aside specific funds to take care of your pet. It can be set up to take effect immediately or automatically upon your death. The trust would specify a caretaker to physically provide for your pet and a trustee to monitor and control the funds. Under the common law such trusts were unenforceable by the courts in your state. However, the State of Washington has a statutory pet trust that has been approved by your legislature. The purpose of this law is to recognize and validate certain trusts that are established for the benefit of animals. These trusts will be recognized as valid and fully enforceable in Washington.
Contact us for more information or questions on a Washington statutory pet trust.
A Will...a way...to protect your Pets?
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.
