A Pet Trust can be Inter Vivos or Testamentary
A pet trust can be established thorough a testamentary trust or with an inter vivos trust.
An inter vivos trust is one that takes place immediately upon the completion and execution of the document. We generally think of this type of trust as a living trust and it is usually revocable by the trust grantor, creator or settlor (all of these terms are used interchangeably).
The living trust can be used to plan for unforeseen circumstances such as incapacity, disability and eventually the death of the grantor.
The grantor also usually serves as the original trustee or co-trustee. In the case where two or more co-trustees serve, the trust instrument can provide that either trustee may act alone on behalf of the trust or require both co-trustees to actor sign.
The trust may never actually be needed or used until the death of the grantor, but it is always available if necessary. It can be changed or altered or even revoked by the grantor at any time.
In a pet trust, this provides that there will be no lapse of care or treatment for your pet and no delay because of any probate process.
On the other hand, a testamentary trust is one that is created in a will.
Since a will is an ambulatory instrument, in that it never is effective until the testator (the one who writes the will) actually dies, this trust will not spring to use until the pet owner is no longer around.
Additionally, a will must go through the probate process, see here, and there may well be some time delays.
This delay may cause issues for the ability of your pet caretaker to secure the means and authority to take care of your pet.
One advantage of this type of trust is that is may be less expensive than the living trust. The trust clauses can be incorporated into the will of the pet owner and thus, become an integral part of the overall estate planning process.
What is the Probate process?
When an individual dies, their bills must be paid and their assets distributed.
If they die with a will (testate) then the will must be taken to the Probate Court, accepted as a valid document and filed with the Court.
If someone dies without a will (intestate) then each state legislature has established laws to determine who will receive their assets.
In either case, a Personal Representative is appointed and that individual is responsible for collecting all of the deceased assets, paying their final bills, including any taxes due, and then distributing the property, as directed by the will or the legislature.
All of this is subject to the overview and approval of the Probate Court.
The entire estate process can take from a few months to years, depending upon the state laws and the estate complexity.
Can I put my pet in my will
Can I put provisions for 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.
