Pet Planning: Wills vs Trusts

December 17, 2014

wills vs trustsPlanning for the future of your pet may be as important as any other part of your estate plan.  Basically, there are three estate planning documents that can be used specifically for pet owners.  Provisions can be included in a will, which give the pet to a chosen caregiver along with funds to support the pet.  A pet trust allows a trustee to oversee the care of the pet and ensure that the owner’s instructions are being followed.  Finally, a pet protection agreement is another legally enforceable document, which provides essentially the same protection as a pet trust.  So, when it comes to pet planning, you may want to compare wills vs trusts, in determining which method to use to protect the future of your pet.
The disadvantages of using a will for pet planning
Contrary to popular belief, your pet’s future may not be properly protected simply by mentioning them in your will.  First, any instructions you include in your will, pertaining to your pet, are not legally enforceable, unless you provide a testamentary trust that has to be enforced by annual reports to the court.  The purpose of a will is, essentially, to distribute assets.  Once your pet is distributed to the person you choose as caregiver, that pet becomes his or her property.  However, the caregiver is not obligated to keep or care for the pet.  The same is true if you leave specific funds to the caregiver for the purpose of caring for the pet.  The will cannot force the beneficiary to use the funds in any specific way.
Another problem with wills is that their terms are not put into effect immediately.  Wills must go through probate, which is a lengthy court proceeding.  With only a will, a special hearing establishing the caretaker's right to provide for the care of your pet during that waiting period before the final settlement of the estate may be necessary.  Also, wills cannot provide for the care of your pet in the event you only become incapacitated, because wills only become effective upon your death.  These inherent problems with wills do not mean that a will should never be used for pet planning.  Instead, pet provisions in a will need to be supplemented by a pet trust or a pet protection agreement.
The benefits of pet trusts in pet planning
Pet trusts provide better protections and have more advantages than using a will alone to plan for your pet’s future.  First, a trust can be drafted to become effective upon the owner’s death, as well as during the owner’s lifetime.  This means that, in the event the owner becomes incapacitated, there will be provisions for the pet’s care that go into effect immediately.
One of the most important benefits of a pet trust is the ability to control the disbursement of funds for the pet’s care.  You can appoint a trustee, separate from the guardian, who is responsible for investing and distributing the funds.  The trustee can ensure that the instructions you provide in the terms of the trust are followed by the guardian.  With these extra protections, the benefits of a trust over provisions in a will, are clear.
If you have questions regarding pet trusts, or any other pet planning tools, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.

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