Providing for your pets with an "Honorary Trust for Pets"
Chances are you are one of the 72.9 million pet owners in the United States. And, chances are, your pet is one of the most popular members of your family!
Americans love their pets. In fact, most households report that pets are considered to be full fledged family members. Part of loving and caring for a pet is the concern we have for their well being after we are no longer there to care for them. In fact, more pet owners are now making provisions in their Will or Trust for their furry and feathered friends.
In answer to owners' needs to provide for their pets in the event of death or incapacity, the Colorado Legislature passed a law in 1994 recognizing the right of individuals to create "Honorary Trusts for Pets." The Act provides that you may: (1) name a Trustee to manage the Trust; (2) allocate funds to care for the pet and his or her offspring; (3) determine how much of your estate assets will go to the pet or the pet's offspring – even the entire estate; (4) establish requirements and conditions for the pet's care that must be honored by the Trustee; (5) name a pet care-giver and place where the pet will live; and (6) designate beneficiaries who will receive any funds that are remaining after the pet dies.
Because the "Honorary Trust for Pets Statute" is unfamiliar to most, few pet owners are aware that there is an efficient way to provide for the care of their pet. Most owners just assume that "someone" will take care of the pets, without really planning ahead or verifying that "someone" will do so. This could be disastrous if a sudden illness or accident should render the owner incapable of making decisions for the pet's care, or if they should suddenly die. A plan must be in place for the immediate care of the pets or there is a danger that the pet could become abandoned or taken to an animal shelter. This is especially problematic for people living alone (seniors in particular) who may not have family or friends close by who can step in to adopt the pet. Further complicating the situation is the reluctance of otherwise willing care-givers to accept the animals because of the expense involved in caring for the pet/s.
A plan can be incorporated in the owner's Will or Living Revocable Trust to address the immediate needs of the pet in the event of the owner's death or incapacity. The plan should designate a family member, friend or neighbor who has agreed to serve as a temporary care-giver care for the pet during the administration of the owner's estate.
It is best to select someone who is familiar with your pet, who is an experienced pet owner and who either no longer has a pet or has a pet that would be compatible with your pet. If you own multiple pets, it is far less stressful on the animals if their "animal family" can move to a new home intact, especially if they have bonded with each other. Finally, periodically reconfirm that your chosen care-giver is still willing and able to accept your pets.
Your estate plan should authorize the Executor or Personal Representative of a Will or the Trustee of a Trust to find a satisfactory replacement temporary home for the pet until it can be placed in its permanent home in the event that the temporary care-giver cannot be found or is unwilling to serve. As this may take some time to accomplish, the owner's Trust or Will should authorize the Trustee or Personal Representative to utilize estate funds to pay for the pet's expenses, i.e. food, veterinary care, boarding, grooming expenses, etc., in the interim.
While in many cases a Will may be adequate to accomplish your goals, there are two reasons why a Living Revocable Trust is generally preferable. Should you become incapacitated rather than die, the provisions in a Living Revocable Trust take effect insuring that your pet is taken care of regardless of the situation. Secondly, the Trustee of a Living Revocable Trust can monitor the care of your pet over time to insure that it is properly cared for and that your instructions are followed.
Colorado law gives rather broad latitude in drafting bequests to the pet, however care must be taken to draft carefully in order to mitigate the chances of a challenge to the will or trust by disinherited heirs or beneficiaries who disagree with your choices. Therefore you should utilize the advice and services of an experienced estate planning lawyer who has the expertise and knowledge necessary to draft provisions for the care of your pet that will give you the peace of mind that comes with knowing that your best friend will have a good home and proper care after you are gone.