November 11, 2017
My daughters will swear that our dog, Maggie, actually raised them. I still have pictures of them rolling Maggie around in a baby buggy; poor Maggie! For many of us, our pets are family. In fact, in the United States, there are four pets for every child. For many people, a key concern is how their pets will be cared for when they can’t do so.
Virginia allows its pet owners to provide for the care and comfort of their pets, even after the owner’s death. This can be done using a Pet Trust as authorized by law (§ 64.2-726, titled “Trust for care of animal”).
Parties to the Pet Trust: Pet Trusts have the following parties:
- the Grantor (this is the person in whose Trust or Will the Pet Trust is created);
- the Beneficiaries (these are the pets);
- the Trustee (this is the person or persons named to invest and spend the money in the Pet Trust for the benefit of the pet);
- the Trust Protector (this optional role is for a person who can bring to the Court’s attention the fact that the Trustee is not spending the money appropriately); and
- the Residuary Beneficiary, if any (this is the person or charity that receives any money left in the trust when all of the pets covered by the trust die).
Creation of the Pet Trust: a Pet Trust can be created either in a Revocable Living Trust (RLT) or in a Will. If the Pet Trust is created in an RLT, it can provide for the pets if you become incapacitated as well as after your death. A Pet Trust created in your Will only provides for your pets after your death.
Funding of the Pet Trust: a Pet Trust should be funded with a reasonable amount. What is a reasonable amount? Consider the age, medical condition, life expectancy, and the way you want your pet to live. Do you want your pet to remain in your home? If so, the trust needs to be funded with sufficient investments to run the home and have a pet sitter care for your pet. The Virginia Pet Trust statute specifically allows a court to determine that the trust has more money than is necessary for its purpose, and to direct the Trustee to distribute excess money from the trust to the residuary beneficiaries. So, overfunding the trust can make it a target for interested beneficiaries.
Spending Trust Money for the Pet: the Trustee is allowed great discretion in determining how to spend the money in the Pet Trust for the benefit of your pet. The Pet Trust can (and should) express your wishes in this regard.
Protection of the Pet: no matter how smart your pet may be, your pet cannot read the Trust, and cannot object if the money in the Trust is not being spent for the right purposes. The job of the Trust Protector is to keep an eye on what is happening, and be willing and able to speak for the pet if the trust money is being spent inappropriately.
Termination of the Pet Trust: the Trust ends when all pets for whom it was established have died, and any post-death expenses (burial, final veterinary expenses) are paid. The Trust cannot provide for any offspring of the pet unless they were living at the Grantor’s death. At the death of the last surviving pet, if the RLT or the Will says who or what receives any funds remaining, that person or charity is the residuary beneficiary. If the RLT or Will does not state who receives any remaining funds, they go to the Grantor’s legal heirs.
We at The Heritage Law Group encourage our clients to plan for their family members, regardless of how many legs or wings they may have. Our attorneys are available to discuss Pet Trusts, and how a Pet Trust may supplement and enhance your current estate plan.