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Question: How can I protect my pet when I am no longer able?
Answer: You can help protect your animal companion by creating a pet trust. There are two types of trusts, one is called an inter vivos trust also known as a “living” trust and the other is called a testamentary trust, which would be part of your will.
A living trust will take effect if you are no longer able to care for your pet and per your specific instructions (absence, disability, incapacity) and during your lifetime whereas a trust that is part of your will takes effect as your will does — only upon death.
As the “settlor,” you decide who would be the best candidate to take care of your animal companion (“successor caretaker”) when you are no longer able. You also need to decide who is the best candidate to take care of the monetary funds (successor trustee), which would be used to financially care for your pet.
In many, if not most instances, the caretaker and the trustee are different people, as they have very different skill sets. The caretaker should be someone that you already know loves animals and has knowledge and experience caring for the kind of animal you have. It will be someone who enjoys caretaking and someone who understands and will carry out the type of care your animal companion needs.
The trustee will be someone who has experience managing money responsibly and who also understands the costs involved in routine and extraordinary care of your animal companion. The trustee will also be someone comfortable ensuring that the caretaker is using the trust funds responsibly and only for the benefit of your pet.
As the settlor, you need to ensure you specify the date upon which your successor caretaker and trustee will take effect. If you don’t want to specify a particular date, you need to specify a particular event (i.e., upon incapacity), but you need to define exactly how the triggering event will be defined or you risk a question of whether or not the event has actually occurred and who is legally able to administer the trust.
The trust should state when it will terminate, whether or not it is revocable and should also designate remainder human beneficiaries or charitable organizations after the settlor’s death and the deaths of all of the animal beneficiaries.
A trust that is part of your will can only take effect and be funded upon the testator’s death. Speak to your estate planning attorney to determine which option is best for you. Your estate planning attorney will also assist in determining what administrative fees apply and will be able to compare the expenses involved in each type of trust.
The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please email Courtney Gibb at firstname.lastname@example.org.
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