Attorney Jillian Mastroianni and other local professionals including representatives from Alive Hospice and the Alzheimer’s Association will hold an estate planning conversation at Cultivate Coworking on Oct. 11 to encourage everyone to plan now for death. Event organizers encourage everyone, no matter their age, to begin getting their affairs in order early, to make sure their final wishes are carried out and to ensure that as many details as possible are already determined to remove some of those burdens from their family.
The truth is that the doggy in the window, you know, the one with the waggly tail, is more expensive than you think. In fact, one congressman was so concerned about the financial cost of pet care that he introduced the Humanity and Pets Partnered Through the Years (HAPPY) Act to Congress in July 2009. The Happy Act sought to amend the Internal Revenue Code to allow a tax deduction of up to $3,500 per year for pet care expenses, but it didn’t gain sufficient support to become law. Despite the unhappy fate of the HAPPY Act, pet owners spend an average of $126.19 monthly on pets. Regardless of whether that doggy in the window was a purebred or a rescue at the shelter (or whether a pet is a “doggy” or not), owners need to be prepared for the expected costs of pet ownership—food, vaccinations, day care (for some), and, for those on the cutting edge of the pet care community, pet hospice.
But, it’s the unexpected costs of pet ownership that hit a pet owner’s bank account, and hit it hard. As I sat at the emergency veterinary clinic one Saturday evening, I studied the treatment options, which were neatly defined and itemized on a printout.
“Okay,” I said, “Let’s go down to here,” pointing to all the tests and procedures up to and including x-rays, “and if we find anything abnormal, I’ll make another decision.” I committed to $800. The veterinarian returned with the x-ray results and discussed her concerns. I discussed mine, and then, as if making a decisive poker move, declared, “I’m all in,” that is, $1,600 all in. I had set aside almost that exact amount for some minor improvements to my house. I cancelled the handyman and handed over my credit card.
The treatment was for Oliver, a gangly brown beast of a dog that I rescued six years ago after he was tied to a fence outside a Tennessee animal shelter. He’s that same gangly brown beast that accompanies me daily to work at 107 N. Maple St. and takes me for walks around the square when my brain needs a rest. As I sat there, I thought about how I, the one who most loves that brown beast, had very consciously considered the financial ramifications of his treatment options.
As an estate planning attorney, I’m programmed to think “What would have happened if I weren’t here?” “What would have happened if someone else had to make that decisions about Oliver’s fate?” “Would someone else have opted, instead, to move forward with those home improvements?”
Fortunately, the law offers a tool to prepare for that particular reality—an Animal Trust. Tennessee law now provides that an individual (the “settlor”) may create an Animal Trust to take effect during the settlor’s lifetime and/or a testamentary trust to take effect on the settlor’s death. An Animal Trust may only be created to benefit animals that are alive during the settlor’s lifetime, which may include animals in gestation but not yet born. The terms of the Trust may be enforced by a Trust Advisor or Trust Protector named in the trust instrument, or, if no such person is named, by an individual appointed by the court having jurisdiction over such Trust.
An Animal Trust may be as detailed as the pet owner desires, or it may leave decisions to the discretion of a named caregiver. For example, the settlor may wish to provide instructions regarding veterinary care and end-of-life decisions, or attach as an exhibit to the Trust a particular pet’s medications, dietary concerns, daily habits, pet insurance, and contact information for the pet’s regular care providers, including a veterinarian or dog walker.
In creating an Animal Trust, the pet owner must decide how much money is sufficient to adequately provide for the pet’s care over its lifetime or 90 years, whichever is the lesser. If you happen to be raising koi in your backyard pond, the trust won’t be enforceable long enough to provide for the sturdiest among them, who can live more than 200 years.
Additionally, Tennessee Code Annotated Section 35-15-408(c) provides that to the extent the court determines that the value of the trust property exceeds the amount required for the intended use, it must pass as otherwise provided in the trust document, or if there is no such provision, to the settlor’s successors in interest. Although Leona Helmsley left $12 million in trust for her dog Trouble, the court decreased this amount to $2 million and the remaining $10 million passed to a trust for the benefit of various charities.
It’s important to remember that pets are considered property under the law, and therefore must be provided for in a trust document rather than as the recipient of an outright bequest. A gift of property (money) to property (a pet) is void under the law. Although the Nonhuman Rights Group worked tirelessly to bestow “legal personhood” on Tommy the chimpanzee, on May 8, 2018, the New York Court of Appeals denied the Nonhuman Rights Group permission to appeal in its quest to find a judge who agreed “that chimpanzees are autonomous, self-aware, highly intelligent, emotionally complex beings who fit the definition of a ‘person’.” With the possible exception of Tommy the chimpanzee, animals are property, not people, and a simple way for individuals to provide for them is by including an Animal Trust in their estate plan.
An example of a simple testamentary Animal Trust is provided below:
TRUST FOR CARE OF ANIMALS
1.1. I hereby established the OLIVER DOG TRUST pursuant to the terms of Tennessee Code Annotated Section 35-15-408 to be used for the care, maintenance and support of any and all animals which I may own as of the date of my death. Such Trust shall be administered as provided below. I nominate and appoint ASHLEY ABLE, pursuant to the terms of Tennessee Code Annotated Section 35-15-408(b), as the Trust Protector to enforce this Trust. Notwithstanding anything herein to the contrary, no Trust or Trust Share herein created shall continue beyond the ninety-year term as allowed by Tenn. Code Ann. § 35-15-408 or any successor provisions, or other applicable provisions of the law, and any such Trust or Trust Share shall be subject to the provisions of such statute, and applicable law.
1.2. I nominate and appoint SANDRA SMITH to serve as Trustee of the OLIVER DOG TRUST. Should SANDRA SMITH be unable or unwilling to serve, or cease to serve, then the Trustee of the OLIVER DOG TRUST shall be such person or entity as may be chosen by my Executor (or the person who had served as my Executor if my estate is then closed). No bond shall be required of such Trustee, unless made a condition of the appointment.
1.3. I hereby devise the sum of one hundred fifty thousand ($150,000.00) dollars to be held in the OLIVER DOG TRUST to be used for the care, maintenance and support of any animals which I may own as of the date of my death. The Trustee shall have the ultimate authority as to what is appropriate to be spent for such purposes.
1.4. I nominate my friend JACKIE JONES to serve as caretaker of all of the animals that I may own at the time of my death. If for any reason she is unable or unwilling to serve as caretaker, then I nominate ELIZABETH EAST to serve as caretaker. If neither of these persons is able or willing to serve as caretaker, then such successor caretaker or caretakers as may be appointed in writing by the then serving Trustee, from time to time, shall serve.
1.5. So long as the caretaker has continued to properly care, in the Trustee’s discretion, or in the absence, or failure to act, of the Trustee, in the Trust Protector’s discretion, for my animals, then the caretaker shall be paid three thousand dollars ($3,000.00) per year as reimbursement for the time required.
1.6. Should the Trustee, in the Trustee’s discretion, determine that the assets in the Trust clearly exceed what might reasonably be required to care for the surviving animals during their lifetime, the Trustee may distribute some portion of the principal or undistributed income in the Trust as provided in Section 1.6 and Section 1.7, free of this Trust.
1.7. Upon distribution as a result of the termination of the OLIVER DOG TRUST, or pursuant to a partial distribution as provided in Section 1.6 above, an amount equal to one-third (1/3) of such distribution shall pass to WEIMARANER RESCUE OF THE SOUTH.
1.8. Upon distribution as a result of the termination of the OLIVER DOG TRUST, or pursuant to a partial distribution as provided in Section 1.6 above, an amount equal to two-thirds (2/3) of such distribution shall pass as follows as provided in Article IV of this my Last Will and Testament.
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Register for the free Oct. 11 event at Cultivate Coworking at thepulsestopshere.eventbrite.com. Topics covered will include standard important documents to create and have, setting up trusts, power of attorney and other topics that affect people in today’s times.
