16 Jul Including Pets in Wills and Trusts
Many pet owners consider their animals an integral part of the family. It makes sense that an increasing number of clients ask about including pets in their estate plans. While animals are legally considered “tangible personal property,” any pet owner will tell you that an animal is much more than that. Wisconsin’s trust laws caught up with this fact in 2014 when the revised Trust Code (Chapter 701) added a specific authorization to create trusts for the benefit of pets upon the incapacity or death of the trust creator (Wis. Stat. § 701.0408). As an animal lover, I was thrilled with this advance in the law. I enjoy helping clients craft trusts, wills, and other estate planning documents that provide them with peace of mind about their pet’s well-being.
Including pets in an estate plan involves taking into consideration issues that may be much different than more “traditional” plans. Here are some considerations that pet owners will want to think about prior to executing estate planning documents:
Who will take care of my pet? The pet trust should specify a person or people who will oversee the everyday care of the pet. It is always a good idea to have at least one backup person named in case your first choice cannot act when the time comes. When choosing a caretaker, consider the person’s familiarity with animals and his or her philosophy on the care of animals. The person’s living situation should also be considered. If you are not providing a living space for the pet in your trust, consider where the caretaker lives. If you have a border collie and the caretaker lives in a tiny studio apartment downtown, this would likely not be a good fit for such an active breed of dog. Perhaps you have a vocal beagle (like me) who also would not be a good fit for apartment life due to the proximity of neighbors. You may also want to consider whether the caretaker already owns other animals and whether it would be feasible to add another pet to the pack. One of the most important considerations is whether the caretaker shares the same philosophies as you do regarding the standard of care for your pets, including food, enrichment, veterinary care, exercise, and affection.
How will my money be used to help my pet? In addition to naming a person to care for your pet, you will also need to appoint someone to oversee the money that you have left in trust for the benefit of your pet (the trustee). The trustee will have the responsibility of managing the money and making sure it is used for the benefit of your pet as you have outlined in your trust. When you have the same person in charge of the pet and the money to be used for the pet, you may be asking for trouble. It is important to consider naming a different person than the caretaker for the role of trustee to have a system of checks and balances in place. Another idea is to have a “trust protector” designated in your trust who would watch over the distributions being made from the trust to ensure your pets are cared for in the manner you set forth in your trust. Because your pet will never be able to review trust accountings or let anyone know if he or she is not receiving benefits from the trust, the more people watching over the pet trust, the better.
What will happen when my pet dies? A trust for pets will contain provisions specifying who is to receive any remaining trust assets upon the death of the last pet to die (called “remainder beneficiaries”). Examples of remainder beneficiaries include family members, friends, and charitable organizations. It is important to consider not naming the caretaker or trustee as a remainder beneficiary of the pet trust. If the caretaker or trustee knows that he or she will receive any amount remaining in trust upon the pet’s death, it may provide an incentive to cut costs when providing for the pet in order to maximize the amount left over in trust when the pet dies.
What if I am incapacitated and cannot care for my pet? Not only is it important to provide for your pet upon your death, but also during your lifetime should you become incapacitated. A Power of Attorney for Finances and Property can contain provisions allowing for your assets to be used for the care of your pets if you are not able to provide such financial support yourself. These provisions regarding incapacity can also be inserted in your trust document.
At Neider & Boucher, we have eight experienced estate planning attorneys ready to assist you to achieve peace of mind through your estate plan. As an animal lover, I am happy to discuss with you how to provide for your pets upon incapacity or death to alleviate any worries about the unknown.
This article does not constitute legal advice. Please consult legal counsel to determine how this information applies to any specific situation. If you have questions about estate planning in general or about including pets in your estate plan, please contact Maggie Premo at Neider & Boucher, S.C. at 608-661-4500.