Our animals are dependent upon us, no different from small children. The law and our legal traditions provide many ways to care for our children when we die or become disabled, and we also assume that our children will become independent at a certain age. Our legal traditions give short shrift to animals, considering them not much different from bag of dog food, and you can’t make kibble the beneficiary of a trust.
It is within the authority of the legislature to change legal traditions, and in the last 20 years the legislatures of most states have changed this traditional treatment of animals by way of statutes creating “Pet Trusts.” Pet Trusts have a Settlor (you) a beneficiary (the animal), principal (the money held in the Trust), the Trustee (who manages the money) and a Caretaker who takes on the day-to-day care and custody of the animal. The rules for how you want your animal to be treated are set forth in the terms of the Trust and will tell the Caretaker what to do and ensure that the Trustee pays for it. Until August of 2016, the New Jersey pet trust statute addressed only “domestic animals” and specified that the Trust could only last for a maximum of 21 years.
The deficiencies in this statute are pretty obvious. Is a barnyard animal a “domesticated animal” even if you consider it a pet? A snake or a mouse? Also, if the Trust ends after 21 years, what happens to horse that might live until 25, or a parrot that might live more than 30 years? As of August, 2016, the statute removed the word “domesticated” and eliminated the reference to “21 years.” Here is how it reads now:
3B:31-24. Trust for Care of Animal.
- 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.
- A trust authorized by this section may be enforced by the settlor or 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.
- 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 shall be distributed to the settlor, if then living, otherwise to the settlor’s estate.
Pet trusts can specify as much detail as you want: from securing pet insurance to the number of vet visits each year to how many walks a day. Here are some of the questions a properly drawn Pet Trust can answer:
How much money should go into the Trust and, who is the Trustee?
Who is the Caretaker, and what does “care” mean?
What if the Caretaker can no longer care for the animal?
If a pet cat is pregnant, are her kittens included?
What happens to the balance in the Trust when the animal dies?
Under what circumstances should the Caretaker consider euthanasia?
Please contact Carol A. Otvos, Esq. through my office to discuss your wishes