If you’re reading this article, it’s probably because you are dedicated to animals. And you’re very likely sharing your life with a special animal or – come on, admit it – several. Right?
Estate planning. People aren’t always great about planning for their loved ones after they are gone. That is really who you are planning for, right? Those you leave behind. It’s hard to face your own mortality – but we must do it. You cherish and love your pets, too, and you want to ensure they are cared for; this is part of estate planning too. Estate planning can be confusing and intimidating. It’s ok, that’s why there are people to help you.
Pets are the most vulnerable of your heirs. They cannot speak for themselves and have little legal protection unless you provide it for them. Don’t leave things to chance, no matter how sure you are that your human loved ones will care for your pets as you would like. There are just SO many ways that pets can fall through the cracks, even with the best of intentions. There are also many ways you can protect them. You might be tempted to just jot a few things down on a notepad and hope for the best. However, trusts in general must be set up properly. And pet trusts are unique under law. The law provides you an option, but if you do not create the trust correctly, you lose that special opportunity.
What is a pet trust? Trusts hold assets (such as money), managed by a trustee, for the benefit of those you name as a beneficiary – in this case, your pets. You designate a trustee (who handles the trust assets), and who will care for your pets (this can, but does not have to, be the same person as the trustee). You can (and should) lay out how that money is to be used, terms of how your pets are to be cared for, and what happens to the money once your pets have passed on.
Washington is one of 46 states that recognize pet trusts. Without these statutes, the law does not recognize wills or trusts benefitting animals. Washington’s pet trust statue is RCW 11.118, which in general affects trusts formed after July 22, 2001 (if you have one earlier it may apply too; your legal advisor can tell you). This statute specifically grants the ability to create a valid trust for most animals, and to legally enforce it.
The ultimate driver in interpreting your trust when implementing it – and, if necessary, enforcing it – is your intent. So the more you can explain and reflect your intent in the trust, the better. The court will also look at outside evidence as needed to understand what you intended. But the clearer you are in your trust, the less you have to rely on someone “guessing” (however well-educated the guess). The people who have the ability to enforce the trust are the trustee, the person with custody of the animal (note “custody” is not simply possession), or a person appointed by the court upon petition by someone with an interest in the welfare of your pet.
What do you need? The most basic step is identifying the animal. You do not need to identify any particular animal, and in fact might not want to. The trust is valid long as the animal can be “reasonably identified.” This allows you to craft language that ensures you include all of your pets at your death, not just the ones living when you created the trust or when you last updated your documents.
What does the trust say? Whatever you want. Using an attorney is wise to ensure what you want is actually what the trust says will happen. I do not say this just because I am an attorney. Estate law can be tricky on what seem to be obvious things. Attorneys understand the law, know what it will or will not enforce, and help ensure your pet enjoys what you actually intended. There are pitfalls that you would have no clue to prepare for, and most people underestimate or do not think about life’s curve balls. Even if everyone intends well, the law may work against you. The difference between a good result and a nightmare often hinges on the language of the document. A lawyer can strike a balance to help ensure the best care for your pet, while being fair and appreciative to those responsible for such care.
One of the most important facets of a pet trust is who you will designate as a trustee and as caretaker. The trustee is the person who will manage the trust, which means directing your pet’s care and ensuring the money is used for that purpose. The caretaker is the one who the animal will live with, and who performs the day-to-day care. The same person can serve as both trustee and caretaker or it can be two different people. There are pros and cons to both, depending on your circumstances.
The first and foremost consideration is, of course, selecting someone who you believe will actually want the responsibility. Do not assume a family member of friend will take your animal, even if they love them to pieces. A trustee or caretaker can decline to serve for many reasons: perhaps they are unable if they are in the wrong living situation, are elderly, or have physical disabilities that impair their ability to care for your pet, etc. You also want someone who knows your pets and how you would like them cared for. Someone you have spoken to and planned with is in the best position to execute the intent of your trust, which is otherwise left to the interpretation of another or, ultimately, the court.
And don’t stop at one. It is wise to name more than one successor trustee and caretaker so that if the first trustee or caretaker cannot or declines to serve, then there are successor trustees or caretakers to step in. I personally like the ‘triple-option’, with a succession of three people in line. For example: you name your spouse as first in line; and if your spouse cannot, you name your daughter; and then if she cannot, you name a friend. You can have as many successors as you’d like. I, personally, do not typically recommend “co-trustees” that will serve at the same time, as that introduces another avenue for possible conflict. It sounds good, but in execution, does not always go so well. To me, the simpler, the better. Keep in mind that if you do not designate a trustee, or if the named trustee(s) cannot or decline to serve, the court will appoint one.
If you want or need a “neutral” fall back option, you can also look into organizations that help facilitate placement or care of pets once if you have passed or become incapacitated. If you like and trust a particular program, it can be prudent to designate such an organization as the last-in-line trustee, just in case none of your personal trustees are able to fill the role when the time comes. Do NOT assume a rescue will simply take your dog. They may – but they may not. Talk to them first, make sure they have the resources, the program, and the ability to commit.
What can you leave your pet? Anything you would like – but make it easy to calculate. Two common and straight forward methods are a set amount of money, or a percentage of your estate. There are – as is usually the case – pros and cons to both, and the decision depends highly on your specific situation.
The statute incorporates some general trust provisions from the standard trust statutes, such as in defining the general authority of the trustee. The statute protects against a trustee simply using the money for themselves by specifically prohibiting the trustee from using the money for anything other than the pet’s care. The trustee may pay him- or herself a reasonable reimbursement for time and expenses. General law on trusts in general gives some guidance on what is “reasonable” under various circumstances.
The trust terminates under the statute once your pets have passed on. The statute provides for how funds left in the trust will be handled, subject first and foremost to what the trust itself might direct. The statute generally lumps the money back into your general estate, which is perfectly fine. But if you would like something different to happen – such as a donation to an animal-related charity or passing it on to a specific heir – you must say so in your trust.
Unlike with a normal estate trust, a pet trust or trustee does not have to provide a report or regular accounting for the trust unless ordered by a court to do so.
While less common – but common enough to mention – some people will specifically limit uses of the animal. A common example is terms or prohibitions on breeding when the pet is intact. Many will want to ensure that their animal is altered at the time of death, if not already, or at least make sure no one has the right to breed. If your animal is of breeding quality and you want to share those rights with others (not your usual situation, but may happen if you have animals with a valuable genetic contribution and someone you trust to do so responsibly), you must specifically say so – else the sheer confusion, paperwork and delay as your estate is probated will block any responsible breeder who wants to do it right. This would apply too if you have semen (a common situation in dogs and horses) – be specific about who can use it, who owns it, or if it should be destroyed upon your death. Whatever your goal, you must be very clear about these things to avoid any unwanted consequences.
Most importantly – just plan. Think it through and talk to those who you would like to be involved. Be sure the pet trust is included with and in the same location as your general estate documents, so that everyone is aware of it. And go hug your pet and smile.
Gryphon Law Group PS is excited to announce the opening of its Seattle office! As of July 1, 2016, adding to the Lacey/Olympia office and Centralia/Chehalis area. I also offer virtual meeting options and other alternative meeting options. Give me a call at (360) 669-3576 – I’m here for your animal-related business needs!
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Carmen Rowe is a business & real estate lawyer with 17 years’ experience representing animal-related businesses and agriculture. In addition to her small working farm, she has been actively involved with Alaskan Malamutes for 16 years, is general counsel for the National Breed club, has served as general counsel for various malamute rescues, and was a founding member of the Washington State Bar Animal Law Section, serving on the board for 10 years. Carmen is also an active member of the Community Associations Institute.