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SAMPLE PET TRUST Below are sample will provisions to provide for a pet animal. These provisions are generic, that is, they are not designed to comply with the specifics of any particular state statute authorizing pet trusts. Instead, these sample provisions create a "traditional" trust which, after appropriate adjustments for local law, should be effective regardless of whether the jurisdiction has enacted a special pet trust statute. [include in section of will devoted to specific gifts and legacies]I leave [description of pet animal] and [amount of money adequate for animal’s care and trust administration expenses] to the trustee, in trust, under the terms of the [name of trust] created under Article [] of this will. If [animal] does not survive me by [survival period], this provision of my will is of no effect. [include as separate will article creating trust for animal’s benefit]ARTICLE
[] A. Conditions of Creation This trust is to be created upon the conditions stated in Article []. B. Governing Law This trust is to be governed by [name of state] law unless this Article provides to the contrary. C. Trustees I appoint [primary trustee] as Trustee of this trust. If [primary trustee] is unwilling or unable to serve, I appoint [alternate trustee] as trustee. D. Bond No bond shall be required of any trustee named in this Article. E. Trustee Compensation The trustee shall be entitled to reasonable compensation from the trust for serving as trustee. [or] No trustee shall be entitled to compensation for serving as trustee. F. Beneficiaries of Trust [Caretaker] is the beneficiary of this trust provided [Caretaker] receives [name of animal] into [his] [her] home and provides [animal] with proper care as defined in Section G of this Article. The trustee shall deliver [animal] into [Caretaker's] possession after securing a written promise from [Caretaker] to provide [animal] with proper care. If [Caretaker] (1) dies, (2) is unable to provide [animal] with proper care, or (3) is not providing [animal] with proper care, [alternate beneficiary] is the beneficiary of this trust provided [alternate beneficiary] provides [animal] with proper care. [continue in like manner for additional alternates] If there is no qualified alternate beneficiary, [allow the trustee to select caretaker, other than the trustee] [create animal care panel to select caretaker] [donate animal]. G. Proper Care Proper care means [description of care including, for example, requirement of regular visits to a veterinarian]. The trustee shall visit [caretaker]’s home at least [monthly] [quarterly] [annually] to make certain [animal] is receiving proper care. If in the trustee’s sole discretion [animal] is not receiving proper care as defined above, trustee shall immediately remove [animal] from the beneficiary’s possession and deliver the animal to the alternate beneficiary. H. Euthanizing of [Animal] The trustee may not have [animal] euthanized unless two veterinarians, independent of each other, agree that [animal] has a serious or terminal medical condition. I. Distribution of Trust Property While [Animal] is Alive 1. Care of [Animal] The trustee shall distribute [amount] to the beneficiary each [month] [year] provided the beneficiary is taking proper care of [animal] as defined in Section G of this Article. [or] The trustee shall reimburse [caretaker] for all reasonable expenses [caretaker] incurs in the proper care of [animal] as defined in Section G of this Article . Reasonable expenses include, but are not limited to, [food, housing, grooming, medical care, and burial or cremation fees.] [2. Caretaker Compensation] The trustee [shall] [may] pay [dollar amount] to trustee on a [monthly] [annual] basis provided [caretaker] is taking proper care of [animal] as defined in Section G of this Article. [3. Liability Insurance] The trustee [shall] [may] use trust property to purchase liability insurance to protect the trust, the trustee, and [caretaker] from damage [animal] causes to property or persons.] [4. Offspring of [Animal]] The trustee [shall] [may] [shall not] use trust property to reimburse [caretaker] for expenses associated with any offspring of [animal]. J. Termination of Trust This trust terminates on the earlier of (a) 21 years after [testator’s] death, or (b) upon the death of [animal]. [consider including how death of animal is to be proved, e.g., death certificate from a vet] [consider having trust also terminate when animal is deemed "lost" -- require evidence to prove loss of pet, e.g., copies of police reports, ads in newspapers seeking the pet's return, copies of posters placed in the community, etc.] K. Distribution of Property Upon Trust Termination Upon the termination of this trust all remaining trust property shall pass to [remainder beneficiary] if [he] [she] is alive at the time of trust termination. If [remainder beneficiary] is not alive at the time of trust termination, all remaining trust property shall pass to [alternate remainder beneficiary] if [he] [she] is alive at the time of trust termination. [continue in like manner for additional alternates] L. Spendthrift Provision This is a spendthrift trust, that is, to the fullest extent permitted by law, no interest in the income or principal of this trust may be voluntarily or involuntarily transferred by any beneficiary before payment or delivery of the interest by the trustee. M. Principal and Income The trustee shall have the discretion to credit a receipt or charge an expenditure to income or principal or partly to each in any manner which the trustee determines to be reasonable and equitable. N. Trustee Powers The trustee shall have [all powers granted to trustees under [name of state] law. [or] The trustee shall have the following powers: [enumerate trustee powers] O. Exculpatory Clause The trustee shall not be liable for any loss, cost, damage, or expense sustained through any error of judgment or in any other manner except for and as a result of a trustee’s own bad faith or gross negligence. [Note: Additional provisions will be necessary if the animal and its offspring are valuable from a monetary standpoint.] About the Author: Professor Gerry W. Beyer received his J.D., summa cum laude, from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois. Both his master’s thesis and doctoral dissertation topics involved estate planning issues. Professor Beyer joined the faculty of the Texas Tech University School of Law in June 2005 as the Governor Preston E. Smith Regents Professor of Law. Previously, Prof. Beyer taught at the St. Mary’s University School of Law from 1981 to May 2005 and has served as a visiting professor at several other law schools including Boston College, Southern Methodist University, the University of New Mexico, and Santa Clara University. A member of the Order of the Coif and the recipient of many outstanding and distinguished faculty awards, Professor Beyer specializes in estate planning and teaches courses such as Wills and Estates, Trusts, and Estate Planning. Prof. Beyer is a frequent contributor to both scholarly and practice-orientated publications and has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law and a nationally marketed estate planning casebook published by the West, a Thomson business. In 1993, he received the Probate & Property Excellence in Writing Award for Best Cutting Edge Article for Probate and Trust as well as the 2001 Probate & Property Excellence in Writing Award for Best Overall Article in Probate and Trust. He has been the Keeping Current Probate editor for Probate & Property magazine since 1992. Professor Beyer is an Academic Fellow of the American College of Trust and Estate Counsel and maintains membership in the American Bar Foundation, the Texas Bar Foundation, and the College of the State Bar of Texas. |