Can you trust your pet? A primer on Florida pet trusts.

• Author: Hoyt, Margaret R.

People love their pets. More than 62 percent of Americans have a pet. Among pet owners, 69 percent have a dog, 51 percent have a cat, 11 percent have a fish, 7 percent have birds, and 8 percent have other pets, such as horses, rodents, and reptiles. (1) Approximately 90 percent of owners consider their pets to be part of the family. (2) In fact, for some people, their pets are their only family. When considering a plan for your family's future, have you included your pet? What will happen to your pet if something happens to you? Given the integral role pets play in a family's or an individual's life, pets must be considered during the estate planning process in order for an estate plan to be complete.

Many individuals like to believe they will always be present to care for their pets or that they will outlive their pets; far too often, this is not the case. If, as a result of illness or injury, a person must move from his or her home to an alternate or permanent care facility, such as a nursing home, rehab center, or hospital, or if the individual becomes incapacitated or dies without addressing the ongoing care of his or her pet, the outlook for the pet might be grim. Frequently, a decedent's estate plan does not address the placement of pets or provide for their financial support. This doesn't have to happen. To prevent such an unnecessary occurrence, attorneys should work with their clients to develop a written plan for the protection of the client's pets when they are no longer able to care for them.

Attorneys should discuss the various alternative ways people can address the long term care of their pets. One avenue is to include provisions for the benefit of pets in a durable power of attorney, last will and testament, or revocable living trust. Wills and trusts can include specific instructions for the care of a pet along with a dollar amount to be devised to the person designated to care for the pet. However, some people may not feel an outright distribution of their pet along with a distribution of resources for the pet's care is sufficient. Instead, they may want to leave detailed instructions and resources that are more than enough for the pet's lifetime care. Additionally, they may want to ensure they have alternate caregivers, separate the function of pet care and management of the resources, and incorporate a check and balance system to guarantee a happy, healthy life for their pet. These individuals are the perfect candidates for a pet trust.

Traditional Legal Obstacles to Pet Trust Planning

Originally, a legal obstacle to pet planning was the common law. As a general rule, a pet cannot inherit money, property, or an estate. Today, however, attorneys can use legacy planning tools designed to provide for a pet in the event of a pet owner's emergency, disability, or death. Pets can be included in their owner's will as an outright gift, either with or without resources for the pets' care. However, because a will is only effective at death, it does nothing to protect the pet in the event of the owner's disability or a natural disaster. Thus, it is important to plan for the short-term care of the pet in the event of an emergency or the owner's incapacity or hospitalization, or that time period between the owner's death and the administration of his or her estate. This is best accomplished through a pet trust.

Historically, a pet could not be the true beneficiary of a trust. In the event a person wanted to leave money in a trust for the benefit of his or her pet, the devise would have to be accomplished through an intermediary, a human beneficiary. Unfortunately, when the named beneficiary of the trust was a person and not the pet, Florida courts were powerless to enforce the provisions of the trust to ensure that the needs of the pets were protected and that the monies were used for the benefit of the pet and not the human beneficiary. (3)

Another legal obstacle for pet trusts is the rule against perpetuities, which generally provides that an interest in property must vest, if at all, not later than 21 years after the death of someone alive when the...