Pet Trust: Providing for Your Pets in Your Estate Plan

November 20, 2018

While pet owners love their animal friends, many people fail to overlook the care of their pets during the estate planning process. When working on their estate plans, people tend to focus on their spouses, children, and grandchildren. Pet owners must include consideration of their loved animals to ensure that those animals are looked after in a way their owners would want. Pet trusts are but one way to care for your beloved animals after you are no longer able to do so.

Considerations for Pet Owners

Pet owners have many considerations if they pass away unexpectedly or become incapacitated and unable to care for their pets. Below are some of the key questions that should be addressed in an estate plan.

• If you have no estate plan in place, who would accept your pet?
• Would this person want or need to be paid?
• Will other people fight over ownership of your pet?
• Will people fight about how much someone should be paid to care for your pets?
• How sure are you that your selected caretaker would accept your pets?
• Can your selected caretaker afford to care for your pets, especially older pets or pets with dietary or health issues?
• Would your selected caretaker undertake the financial responsibility that accompanies pet ownership?
• How sure are you that your selected caretaker would accept an older pet that has specific needs that requires substantial amounts of time and attention?
• Will the person you put in charge of your estate (your personal representative or trustee) know your desires if you have not specifically set them down in writing? Are your written pet directions legal?

These are only some of the questions and issues that can arise when thinking about pets outliving your ability to care for them.

Caretaker Selection: Have a Backup Caretaker

At estate planning attorneys, we suggest having both a primary and an alternative caretaker for your pets. We appreciate that lives change, and that your first choice caretaker may not be willing or able to act when the time comes. Advanced planning will ensure that should your primary choice not work out when needed, you have someone else in a position to care for your pets.

In our experience, the selection of a caregiver is not something to spring on a preferred caretaker after your death. Your pets will need to be cared for by your selected caretaker as soon as possible after your incapacity or death.

It is possible to nominate an organization or rescue shelter, rather than nominating an individual to take your pets. It is important to explore if this organization or rescue shelter is legally able to accept your pets and whether it requires payment to take your pets. As with individual caretakers, we recommend naming a backup organization or rescue shelter.

What Does a Plan That Considers Pet’s Look Like?

There are a variety of estate planning tools that our estate planning lawyers utilize when looking to care for our clients’ pets. Below are a few of the more commonly used estate planning documents we craft.

Last Will and Testament

Planning for your pet can be as simple as naming the caretaker and an alternate caretaker in your Last WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. and Testament. This allows a clear direction as to what is to happen to any pets that you may own upon your passing. This first step offers an inexpensive way to name who will receive your pets. It also helps avoid fights or disagreements by your family or other survivors.

Last Will and Testament with a Monetary Bequest

In addition to naming your preferred caretakers, you can provide for a set dollar amount to be given to your selected caretaker who accept your pets. This approach delivers an inexpensive method to make provisions for your pets, provide some funds for the caretaker, and avoid fights over who is to receive your pets.

One disadvantage to this approach is that you are trusting the caretaker who accepts your pets, to in fact care for them and use the funds given for the care of the pets as needed.

Last Will and Testament, and Personal Property Memorandum

By utilizing a document that is separate from the Last Will and Testament, but enforceable in the Last Will and Testament, the settlor can change who is to receive each pet through the use of a separate Personal Property Memorandum form. The Personal Property Memorandum form ensures that the will does not need to be updated each time a different caretaker is selected. Additionally, the will can state that anyone named to receive a pet in the Personal Property Memorandum shall also receive a set amount of money along with the pet.

This hybrid approach allows the will creator to update who will receive the pet without the cost of updating the actual will. However, the will, Personal Property Memorandum form, and any updates to this form must be in place before the settlor passes or becomes incapacitated.

Pet Trust

While a pet trust can be a separate trust, we normally include it as part of your overall estate plan, sometimes incorporating it into a revocable trust or will.

Normally, a pet trust would only receive assets upon the death of the pet owner in an amount determined by the pet owner and set forth in the trust or will. The trust money will be managed by a trustee of your choice tasked with using the funds for your pets care. Your trustee would normally be someone different than the caretaker for your pets. In addition, any funds left after your pets pass away will be distributed to your selected beneficiaries such as children, a non-profit organization, friends, or whomever you choose.

The obvious advantage of a pet trust is that it will help ensure that the funds set aside for your pets care, will actually be used for your pets. However, there are also disadvantages such as added set up costs, added complexity post-death, and added expenses post-death.

Prior to Wis. Stats. 701.0408, pet trusts were not legal in Wisconsin. Thankfully, this 2013 statute clearly allows pet trust with some limits.  (See our article from 2014 for some additional information.) In particular, the Wisconsin pet trust statute limits the value of the trust to an amount that does not exceeds its intended use. We recommend considering future pet care costs so as to properly fund a trust to cover that care.

We Can Help Plan for the Care of Your Pets

As part of your estate planning process, we invite you to discuss your pets. We are experienced at crafting provisions to ensure that your desired arrangements are legally enforceable. We can help you provide for your pets care after you are unable to do so. Please contact us to set up an appointment to discuss your estate planning needs.