Jim Porter: How to create a pet trust
October 2, 2014
"Many have forgotten this truth, but you must not forget it: You become responsible forever for what you have tamed."
— Antoine De Saint-Exuperty, The Little Prince.
We love our pets, whether it be Fi Fi, Fido, Duke or Blue. How can you provide for Spot after you die or become disabled? Our certified estate-planning specialist, Kelley Carroll, who has done dozens of pet trusts, laid it out for me.
LEAVE MONEY (AND HOPE)
The common way to care for your dog, cat or pet turtle (other than ask a friend before you die) is to leave money for a caretaker with instructions in your will or trust to take care of Fluffy.
There's no sure way to know Fluffy will be cared for but it's better than nothing. Of course, give a "heads up" to the caretaker.
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The more "formal way" to provide for your pet is to discuss a Pet Protection Legal Care Plan with your estate planning attorney who will set up a Pet Trust for cute little Simon under Probate Code Section 15212.
You can find Section 15212 on line at portersimon.com. Click on "Our Resources," "Legal Resources," "California Codes," Probate Code," "Division 9," "Chapter 1." The law is pretty self explanatory and easy to read — compared to most laws.
One thing you don't want to do is make an outright gift to an animal. That was tried in California and the will-maker's dog Roxy was found not to be a "person" so the bequest was ineffective.
Some of our pets are smarter than some of our friends (and more deserving), but that won't change the Probate Code definition of "person."
Here's what a properly drafted Pet Trust can do: (1) name the pet[s] as the beneficiary of a trust; (2) appoint a caretaker for the pet and a trustee who will manage the money for the pet (which can be the same person); (3) appoint someone to enforce the trust to ensure that the trust's terms are carried out as the owner desires, which often is not done because you trust the person you appoint as the caretaker.
It's always a good idea to name a back-up caretaker/ trustee.
Caveat: If you set up a Pet Trust through your Will rather than your Trust, there may be a probate and delay in funding the trust so consider opening a dedicated bank account at the time the Pet Trust is created to make sure there is money available for your pretty Dolly without delay.
HOW MUCH MONEY?
There's no set amount of money you should leave in a Pet Trust, so use common sense. Don't do what Leona Helmsley did – leave $12 million to her dog Trouble. Seriously.
Helmsley's other beneficiaries challenged her bequest and most of the money never made it to Trouble who had to make due with a mere $2 million.
That buys a lot of caviar and kibble.
Your Pet Trust should specify what happens if there is money left over after Prince dies, like leave it to the local humane society — in our case, the Humane Society of Truckee-Tahoe, a worthy beneficiary.
A carefully drafted Pet Trust should have a contingency should you not leave enough money for Trigger.
By the way, if your Pet Trust does not exceed $40,000, and I strongly recommend it not, no filing or reports are required to be made to any agencies.
It's common for a Pet Trust to provide detailed instructions for the caretaker, sometimes even specifying favorite foods (crickets for Turts), toys (deer antler chews for Rover) and sleeping arrangements for the big dogs (in the caretaker's bed), but my suggestion is leave such decisions to the caretaker.
In sum, a Pet Trust is one of the optional menu items of a well thought out estate plan.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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