Planning For Our Pets

 Most parents are aware of the need to plan for their children’s future    should something ever happen to them. They select people to be  guardians or godparents to ensure someone will house, feed, and care  for the many needs of their minor children. But few make the same  arrangements for pets. Yet these companions and members of our  families have many of the same basic needs as a young child: housing,  food, medical care, and companionship. Unlike minor children,  however, the law provides little to no safeguards for pets. Regardless of  how much you love your pet and consider them a part of your family,  the law, for the most part, considers them an item of your personal  property. This affords them the same legal protections as your sofa or  computer, safeguarding them from theft, but little else. There is no government agency concerned with the welfare of pets over the long term should their owners no longer be able to care for them as there is for children. What would happen to your pets should you become terminally ill or die unexpectedly? Where would they live, and who would pay their expenses? Absent any planning with regard to your pets, their fate would be the same as that sofa and computer. Because they are treated as items of personal property, your beloved pet would pass to whoever was set to inherit your property. This approach, however, leaves much to be desired. First, there is the issue of time. After death, there is often a period of estate probation or trust administration, when the final affairs of the decedent are being wound up. For most items of personal property, placement in storage or a home listed for sale is sufficient during this period. For a pet, however, this is not an option. A pet has day to day needs that do not cease upon the death of an owner. Who will ensure your pet is being cared for during the period of administration? In addition, an issue arises if the recipient of your other items of personal property does not wish to take your pet. Perhaps they have an allergy to the animal, or own their own pets with whom yours is not compatible. Maybe they cannot afford the costs associated with pet ownership. They are under no legal obligation to take and care for your pet. The end result is often tragically that the animals get left at the pound or a shelter, alone and abandoned, and all too often destined for their own heart breaking end.

To aid individuals in making long term plans for their pets, the State of Illinois passed into law provisions allowing for the creation of Pet Trusts to benefit any living companion animals. A Caretaker may be nominated to care for your pets after your death, and a specified amount of money may be set aside to help defray the costs associated with that care. The Caretaker role functions much like a Guardian of a minor, and is a listed individual you wish to take physical custody of your pets and be responsible for their wellbeing. Similar to a Guardian, this is a role that should be discussed with any potential nominee to ensure it is a position they are comfortable with and would accept. It defeats the purpose of nominating a Caretaker, if the role is a surprise to them that they would decline. Unlike a Guardian, a Caretaker is often someone who is not a member of your family. While relatives can certainly be named to the position, often the Caretaker will be a close friend who is well acquainted with your pet and its needs. Pets are incapable of communicating who they wish to care for them, and lack any legal standing to do so, so the Caretaker role is immensely important to the long term wellness of your pet.

In addition to a Caretaker, when creating a Pet Trust a Trustee will also need to be nominated. This role involves the responsibility over the assets that have been left to care for the pet. Since pets cannot be left money or property directly, any assets set aside for a pet must be put in trust for their benefit. The Trustee is then charged with overseeing those assets, and making necessary payouts for expenses such as food, veterinary care, and grooming as needed. While this person may be the same as the Caretaker, often the roles are divided. The person charged with caring for your pet may not be responsible with money or have much in the way of accounting skills. In such a situation the roles will be divided with the Caretaker charged with caring for the pet, while the Trustee oversees the assets in the trust, possibly investing any amounts if necessary. The skill sets for each position are often quite distinct and not available in one person. For those individuals with Living Trusts already created, the Trustee of the Pet Trust will often be the same individual who is named as Trustee of their Living Trust. The Pet Trustee responsibilities are often the same, writ smaller.

While the Pet Trust statute provides for a great deal of flexibility when setting up a Trust, the greatest limitation is that placed upon the assets used to fund it. While the Illinois General Assembly recognizes the need to provide for pets after the death of an owner, it was not their desire to enable pets to become heirs. As much as a pet may feel a part of the family, they are still not recognized as such by the law. Thus there are limitations on the size of any bequest made to care for a pet. The amounts allowed for a Pet Trust are those reasonably necessary for the care and well being of your pet. While the definition of reasonable is not defined, it will vary from pet to pet. Factors taken into account include the life expectancy of the species and breed of your pet, as well as the particular costs associated with caring for that type of animal. An amount that would be considered unreasonably high for a house cat, for instance, might be perfectly acceptable for a thoroughbred horse. The much greater life expectancy, 25-30 years, as well as the costs associated with stables, grooming, and greater veterinarian care would all justify a higher amount. In addition the particular needs of your pet can be taken into account when determining the necessary amounts. If your pet has any special needs, such as medications or chronic health issues that necessitate greater expense, these as well can be taken into account.

 The roles of Caregiver and Trustee, as well as the amount set aside in trust, form the  core of any provisions creating a Pet Trust, but there are a number of other factors  to consider and possibly include when drafting a trust. For instance, if your pet  passes before all the assets are used, where should the Trustee then direct the  funds? What if the trust runs out of money and the Caretaker is unable or unwilling  to pay for further expenses? Should the Caretaker be compensated for caring for  your pet? The funds set aside in the trust are only for the benefit of your pet, and  thus any funds you wish to go directly to the Caretaker will need to be specified. Do  you have any specific requests regarding the disposition of your pet’s remains upon  their death? Do you wish to name a third party to keep an eye on the Trustee and  ensure they are properly overseeing and spending the assets? Does the Caregiver  have any discretion with regard to rehousing the pet should it become necessary or  advisable? Does the Pet Trust only come into being upon your death, or will it also  function if you become incapacitated and unable to care for your pet while still  alive? Pet Trusts are inherently flexible and can contain many of these provisions,  each of which should be considered when planning for your pet’s future. Many of these provisions will depend greatly upon the specifics of the situation; the type of pet, the age of the pet, and the people around you who would fill these roles after you are no longer able to care for your pet. Any comprehensive estate plan should include a discussion of your pets and their long term well-being, and it is strongly encouraged that you raise these issues with your attorney.