Maryland Bar Bulletin
Publications : Bar Bulletin : October 2009

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Pet owners do not view their pets as mere property, and the law is evolving to reflect the importance of pets in our lives. As of October 1, 2009, Maryland law will allow pet owners to provide for the care of their pets after their death through a pet trust under the Estates and Trusts Article of the Maryland Code. If you are unsure about what would happen to your pet should it outlive you, you should consider establishing a pet trust to ensure that your pet will be cared for upon your death.

The Parties

The “settlor” is the current pet owner and the creator of the trust. The settlor funds the trust with money from his or her estate, designates a caregiver and leaves detailed instructions for the care of their pet.

The “trustee” is the person designated by the settlor to execute the trust. The trustee will be responsible for delivering the pet to the designated caregiver upon the death of the settlor. The trustee is also responsible for managing the assets of the estate to pay for your pet(s) expenses, and supervising the caregiver’s treatment of your pet.

The “beneficiary” is the designated caregiver. He or she will be responsible for the care of your pet until its death, at which point they will be compensated with any funds remaining in the trust.

Types of Trust

An inter vivos trust takes effect immediately upon the death of the settlor. This is often the preferred method of creating a pet trust because it eliminates any disruption in the care of your pets. An inter vivos trust is more expensive than a testamentary trust because the settlor is responsible for paying the administrative fees associated with the maintenance of the trust.

WHEN DECIDING
how much you need to fund your pet's care, consider how much you spend on them in a year.

A testamentary trust takes effect upon the death of the settlor, after probate. Probate is the process in which the court determines the validity of your will. A testamentary trust is a less expensive option, however the probate process can be lengthy, so arrangements should be made for the care of the pet(s) during the probate process.

Funding the Trust

Determining how much money is required to fund the care of your pet can be a complicated task. You should make this decision based on your pet’s age, life expectancy, and your expectations for your pet’s care. You should be sure to add sufficient funds to the trust to cover all potential expenses. However, you should avoid transferring a large amount of money or other significant property to the trust as it may cause your other heirs and beneficiaries to challenge your will. In the event of a challenge to your pet trust, a court can reduce the amount of money in your pet’s trust to what the court considers a reasonable amount.

When deciding how much you need to fund your pet’s care, consider how much you spend on them in a year. You should also consider how you want the caregiver to handle the end of your pet’s life. When determining an amount for your pet trust, be sure to remember that the end of your pet’s life may require more significant and expensive medical care.

Instructions

You may leave the beneficiary with instructions regarding your expectations for the care of your pet. Your instructions might address food, toys, cages, housing, grooming, socialization, exercise, medical care and any compensation to which the caregiver is entitled. You might also include instructions for the trustee addressing how closely they should monitor the pet’s care, any special instructions regarding compensation, and other concerns. It is important to leave specific instructions for both the caregiver and the trustee to ensure that your pet receives the care that they deserve.

Remainder Beneficiary

The trust terminates upon the death of the last living pet named in the trust. You should also designate someone that will receive any excess funds remaining in the trust upon your pets’ death. You can consider leaving any remaining funds for the caregiver to compensate them for their work. However, this could create a disincentive for them to spend money on your pet. Therefore, you can instead designate a third party, or a charity, to receive any additional funds.

Free Alternative

If an estate is too small to allow for the funding of a pet trust, consider a free alternative offered by the Maryland SPCA. The SPCA’s Legacy of Care Program will find a foster home, and eventually a permanent home for your pet(s) upon your death. Registration in the Legacy of Care Program is free, and there is no need for you to fund your pet’s care through a pet trust to participate in the program.

Katrina Wallace is an associate at the Law Office of Paul S. Blumenthal.

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Publications : Bar Bulletin: October 2009

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