A pet trust addresses the problem of care for your pets after your death. I have divided pet trusts into three categories; Instructional Pet Trusts, Pet Sub-trusts and the Stealth Pet Trusts.

An Instructional Pet Trust has, within your standard trust or will, instructions on the care of pets. There really is no trust, just instructions. This type of “trust” is strictly on the honor system. The instructions clarify:

• Who has the duty of care
• Dollar amount to be set aside for care
• Any specific concerns or needs in the care of the pet.

Instructions are appropriate for when the pet owner has the confidence that a relative or friend will provide proper care and all persons who will receive assets or have the potential to receive assets from the will or trust will not litigate or engage in family discord.

A Pet Sub-trust is created on the death of the settler according to instructions found within a typical living trust document. All assets of the trust are distributed to the beneficiaries except for a small amount of money that remains in the trust for the care of the pet. Upon the death of the pet, the remaining assets of pet trust are distributed to heirs as directed by the trust. The beneficiaries will become aware of the pet trust due to California law requiring notice to them upon your death.

Additionally, the beneficiaries will be entitled to an annual accounting if the assets exceed a statutory amount. Currently the amount requiring an accounting in SB 685 is $40,000. This type of trust is appropriate when there is no relative or friend who will provide actual physical care of the pet, but there is no concern of litigation by the heirs to the trust or family discord.

A Stealth Pet Trust is a separate and distinct trust document from any other trust or will providing for the distribution of a person’s assets. It is created when the person is alive. This trust has its own assets, separate and distinct from other assets placed in a standard living trust. The beneficiary to receive any assets remaining in the Stealth Pet Trust is to be a charitable organization. A logical charitable organization would be one providing care to pets, such as a no-kill shelter or rescue society.

Because no heirs have any potential interest in the trust, they are not entitled to any notice. The trust operates in secret. This type of trust is appropriate when there is concern of litigation or family discord among the heirs due to the bequest for the benefit of a pet.

What to consider in creating a pet trust:

1) Identify who will be responsible for the pet's care. Identify an alternative trustee in the event the first trustee is unable or unwilling to serve. This person may provide care of the pet. But if the care giver is someone else or a charitable organization, this person becomes the pet protector who will oversee the care giver.

2) Identify a caregiver and alternate caregiver. Possible caregivers are:

(Rescue societies have no central physical location for keeping pets, but locate care givers in foster home like situation until a permanent situation can be found.)

3) Detailed information identifying your pet. But herein lies another problem. Most people will outlive the pet living at the time the trust is created.

Currently, pet trusts are honorary trusts. An honorary trust cannot be enforced and relies on the honor or integrity of people identified in the trust to provide care. Legislation is pending to make a pet trust enforceable, but only for the pet designated in the trust unless the trust provides for alternative instructions.

The trust must be drafted to provide for pets acquired after the creation of the trust to make the trust enforceable. It also makes sense to provide for pets acquired after the creation of the trust to avoid unnecessary trips to the attorney's office for amendment to the trust whenever a new pet is acquired.   

4) Instructions for the trustee to regularly inspect the pet.

5) The standard of living and care you wish for your pet.

6) A detailed description of the property that will fund the trust.

7) Transfer of title in the ownership of the property to the trust.

8) Information on how the remainder of the trust should be distributed once the pet dies.

9) Instructions on the final disposition of your pet's body.

10) Finally, you want to make sure there are enough assets to put your instructions into effect. A good idea is to keep a reserve available to the trustee/pet protector so he or she can fund a legal challenge if care becomes inadequate.

To schedule a no charge, confidential consultation, call 949-474-0961.