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Planning for Our Pets

On Behalf of | Apr 13, 2020 | Estate Planning & Probate

According to the U.S. Census Bureau, 49% of U.S. households included at least one pet.  In 2018, the American Pet Products Organization reported those same households spent over $72 billion dollars on our pets. There is evidence suggesting that attachment to pets is beneficial to our society by contributing to overall human wellness. This includes encouraging community engagement and happiness. It used to be that pets were just a dog or cat. The times have changed. Pets have become much more than a simple dog or cat. We purchase pet toys, throw birthday parties, let them sleep in our beds or sit on our couches, pay for day care, pricey grooming, and take them to dog parks. When our pets pass away, we grieve for them as we do for close family members. In short, they have become important and valued members of our families and increasingly pet owners are concerned about caring for their beloved animal friend after their deaths or upon becoming incapacitated. While many pet owners view pets as important members of our families, the law has traditionally considered them to be ordinary personal property, and property with very little value at that. A direct gift made to an animal contained in a will would have been automatically invalidated by the courts because an animal as property could not be a beneficiary under will and would be incapable of owning property. While our pets, as with any other piece of personal property, could be gifted to an individual through a will, there is no continuing obligation for the personal representative or executor to see to the pet’s well-being after the gift is made. Your only assurance that the pet’s will continue to be cared for at the level you desire is the integrity of the caregiver to provide it.  Nothing would prevent the caregiver from selling your pet, giving it away or even euthanizing it.

New View: Pets as Family In response to this concern, many states began enacting laws to allow for the creation of a trust for the purpose of caring for our pets. Pet trusts, are a type of a noncharitable purpose trust, allowing pet owners to provide for their pets’ care in the event of their death or incapacitation.  Currently, all fifty states plus the District of Columbia have enacted laws that allow for the creation of pet trusts. Wisconsin was the forerunner in this area of the law when it authorized an honorary trust all the way back in 1969! In 2016, Minnesota was the last state to recognize them when it enacted Minnesota Statute §501C.0408 which states:

TRUST FOR CARE OF ANIMAL.
1. Creation of an animal trust authorized; termination.

A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal. Notwithstanding the foregoing, the trust may not be enforced for more than 90 years.

2.Enforcement of trust.

A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by a court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove an appointed person.

3.Application of trust property.

Property of a trust authorized by this section may be applied only to the trust’s intended use, except to the extent a court determines that the value of the trust property exceeds the amount required for the intended use. Upon termination of the trust, or if the court determines the trust has excess funds, the trustee shall transfer the unexpended or excess trust property pursuant to the terms of the trust instrument or, if there is no provision in the trust instrument, then the trust passes to the settlor’s heirs-at-law determined as if the settlor died intestate domiciled in this state at the time of distribution.

4.Public health programs and trusts.

An irrevocable inter vivos trust created under this section is subject to section 501C.1206.

” By creating a trust, the trustee you appoint to manage the trust has a legal obligation to follow the directives contained in the trust.  “

North Dakota Recognizes Pet Trusts North Dakota recognized pet trusts nearly 10 years earlier in 2007 when it instituted North Dakota Century Code  §59-12-08 which provides as follows;
Trust for care of animal. 

1. A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

2. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

3. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

What Does a Pet Trust Do?

A pet trust will allow you to leave funds for your pet’s care as well as allow to nominate a caregiver and provide the caregiver and trustee instructions regarding the care of your animals.

The trustee can be directed to pay for things such as routine and emergency veterinary care, boarding care, grooming costs, feeding and boarding and could be so specific as to direct end of life care for the animal as well as burial or cremation costs.

If there are assets remaining in the trust that are not exhausted at your animal’s death, your trust can instruct where the remaining assets should be distributed. By creating a trust, the trustee you appoint to manage the trust has a legal obligation to follow the directives contained in the trust.

By including a pet trust in your estate plan, you can provide yourself with the comfort of knowing that your furry friends will be cared for after you no longer can. It is important that you consult with an attorney knowledgable in this area and your specific state law prior to creation of the trust to make sure that your trust complies with state law and accomplishes the goal of caring for your animals.

If you have any questions regarding providing for your pets or creating pet trusts or other estate planning documents, don’t hesitate to call the attorneys at Nilson Brand Law and as always, if you have general questions about any aspect of your estate planning needs from wills, to health care directives and powers of attorney, please reach out to our attorneys at Nilson Brand Law at (701) 786-6040 and we can discuss your situation. Or feel free to email [email protected]

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