Back to The Elder Zone – Pets

Jun 26

The best therapist has fur and four legs, and they charge in treats!

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In my blog on May 15, 2025, I introduced you to that mysterious place we all confront if we live long enough: The Elder Zone.

· In The Elder Zone, your body stops working reliably; you perceive the aisles at grocery stores as longer with each trip there, like something Lewis Carroll conjured up; and, most of your social interaction is with members of the medical profession.

· Many of us have “loved ones” who may survive us and for whom we want to provide.

· Often, our loved ones include dogs, cats, turtles, and other animals we collectively call “pets.”

· During the pandemic, I adopted three orphan kittens (Maya, Bodhi, and Sunny). [1]

· They have kept me sane through trying times, made me laugh when I was down, and taught me the art of persuasive begging.

· They are now four years old, and I am further into the Elder Zone.

· Will I predecease them?

· If you are also in The Elder Zone and have pets who may survive you, what should you do?

Trusts - Generally

Disclaimer: I am no longer actively practicing law. That means I cannot give you personal legal advice. I intend to share some practical thoughts about providing for your pets after your death, as I have done. If they resonate with you, please seek the advice of a licensed attorney.

Trusts are the Swiss Army knife of estate planning. [2]

If you leave money or property to anyone and want to ensure that it is protected from creditors, scammers, divorce proceedings, and is used for purposes you approve, a simple trust can do all that and more. I will save my full lecture on the benefits of trusts for another day.

Today, I want to talk about how you use trusts to ensure your pets are cared for after you die. Generally, I will refer to these trusts as “pet trusts.”

I am going to provide the basic ingredients for you. Everyone’s specific recipe will be different based on their circumstances.

Pet Trusts

· A pet trust is a legal agreement by which you (the “settlor”) entrust your pets and enough money or other property to a trusted person or bank (the “trustee”).

· If the Trustee accepts, it will have a legal duty to administer the trust according to your instructions.

Types of pet trusts

· There are primarily two types of pet trusts: statutory and traditional.

· I will not spend much time on the statutory forms. I am not sure they are worth the paper they are written on, but you can be the judge of that.

· One author opined that “I leave $1,000 in trust for the care of my dog, Rover” may be enough to constitute a statutory pet trust: a little scant of details for my taste.

· The second type is commonly called a “traditional trust.”

· Like any other trust, at a minimum, the traditional trust names the trust, names the settlor (you), designates the trustee, and describes the beneficiaries.

· In a traditional trust, you can get down to finely granulated details about how you want to provide for your pets after you die or become disabled.

Assumptions

· Rather than attempting to cover every possible scenario, I am going to assume that you have pets, those pets may survive you, and you want to ensure that they get adequate care and maintenance after your death.

· I assume you have a will and a living trust.[3]

· Finally, I assume you will fund your pet trust when you die and not during your life (unless you become disabled and want to implement the trust because you cannot care for your pets during your life). If so, it is essential to remember to provide someone with enough funds to care for your pets during any delays in the administration and distribution of your estate. A joint account with the Trustee is ideal.

Provisions to Add to Your Traditional Trust

Here are some provisions to consider for your traditional pet trust:

· What will the name of the trust be?

· Provide for the transfer of ownership of your pets to the trust.

· What are the names (chip numbers) of your pet(s)?

· How will you fund the trust? [This is a tough one]

o How much is enough?

o Life insurance?

o Distribution from living trust?

o Include real estate (i.e., residence for pets)?

§ If you plan to transfer your homestead in trust for the benefit of your pets, your lawyer should know that Texas law requires the trust to include particular language to ensure the property will qualify for the homestead property tax exemption.

· Who will the Trustee be? The Trustee is the person or financial institution responsible for administering the trust.

· The Trustee typically manages the trust’s assets, files tax returns, and pays expenses.

· Include a signature line for the Trustee, indicating that it agrees to serve as Trustee.

· What to do about Successor Trustees?

Note: The issue of “successors” comes up frequently in trust planning.

Examples:

o If you name your friend as a Trustee, and he dies before the trust terminates, someone has to take over.

o If you name any person as Successor Trustee, you have the same problem, i.e., what happens if that person dies before the trust terminates?

o No matter how long your list of successors is, you have to be prepared for the possibility that all of them die before the trust terminates. What to do?

o Most trusts have a provision that says if all else fails, you can go to probate court and ask the court to appoint someone.

o That means hiring a lawyer and spending money.

o I prefer giving the last Trustee to serve the power to name one or more successors.

o People who name financial institutions as Trustees (“corporate Trustees”) don’t have the problem of successors (at least until we have another financial crisis like we did in the late 80s and 2008).

o Corporate Trustees may not be a practical solution, but it may be worth it if you fund your pet trust with substantial resources.

· What powers does the Trustee have?

· How will the Trustee be compensated?

· Do you want to include an “exculpatory clause,” to limit the liability of your Trustee (e.g., to gross negligence, intentional acts of bad faith)?

· A pet trust is unique because not only does it require a Trustee, it also requires that you provide for a Caregiver.[4]

· The Caregiver is in charge of the daily care and maintenance of the pets.

· The Trustee and the Caregiver can be the same person.

· Do you want to make specific provisions for compensation of the Caregiver, or leave that to the discretion of the Trustee?

· When considering the issue of Caregivers, we return to the problem of successors. You can pre-designate them or leave it to the Trustee to select Successor Caregivers, if need be.

· Will the Trustee have complete discretion about using trust income and corpus, or will there be limitations or standards?

· What happens if the pet trust becomes underfunded (i.e., the pets outlive the money)?

· What happens if it is overfunded (i.e., all the pets die and money is left over)?

· To what extent does the Trustee have the discretion to hire support, such as pet-sitters, vets, or boarding services?

· If you have indoor cats, do you want to require that they remain so?

· Are there specific ways you want your Caregiver to care for your pets (e.g., daily dog walking, regular outings at the dog park, annual trips to the Vet)?

· Do you want to prohibit declawing cats?

· Do you want to give your Trustee discretion to euthanize older pets or state that the Trustee can put an animal down only under certain circumstances?

· What happens after a pet dies (e.g., cremation, disposition of remains, burial)?

I offer the foregoing as mere food for thought.

No two pet owners are alike, and all pets have unique needs.

Consider what life will be like for your pets after you are gone.

Remember, you never know when you will reach the end of The Elder Zone.

A “warning light” may not go off before your vehicle stops.

If you love your pets, please don’t procrastinate!

I wonder if other dogs think poodles are members of a weird religious cult.

Rita Rudner

[1] How and why I did this at my age is a tale too long for this installment. Practicality and altruism sometimes conflict.

[2] For more information about the use of trusts, please see my blog of August 12, 2018: Why a Trust is a Must for Middle Class Couples. https://www.tnoblelaw.com/blog/why-a-trust-is-a-must-for-middle-class-couples.

[3] Minimum requirements for most middle-class estates.

[4] Some say the Caregiver is the “beneficiary” of the pet trust. I prefer to say the pets are the beneficiaries.

Thomas Noble