The roles in a will or trust are important in ensuring that your wishes are carried out, especially if your pets are included in your estate plan. In some cases, you may opt to not fulfill the role, but sometimes the court will fill the role for you if you do not designate someone. I hope this will help to clarify those roles and help you with what your options are to fulfill those roles.
GRANTOR (SETTLOR OR TRUSTOR) : That is You, if you are creating a will or trust.
BENEFICIARY : Any person who receives any assets from a will or trust.
EXECUTOR (PERSONAL REPRESENTATIVE) : An executor manages a deceased person's estate to distribute his or her assets according to the will. If you do not have a will or you do not have an Executor designated in your will, the state will designate one; usually a spouse or other family member.
TRUSTEE (FIDUCIARY) : A trustee, on the other hand, is responsible for administering a trust.
WILLS AND PETS
So, if you have a will, does the Executor have the responsibility of ensuring that your pets are cared for in accordance with your wishes? No, they do not. The executor is responsible for ensuring that any funds that you have left to your designated caregiver are disbursed to that caregiver, and that is the extent of their requirement as it relates to your pets. Therefore, the disadvantage of a will is that there is no one monitoring the care of your pets or the use of those funds. We never want to think the worst of someone we leave our pets to in our will, but there is nothing to prevent that person from taking the funds and getting rid of the pets.
Additionally, in a will, you are only able to leave the total amount of the funds to the beneficiary who is the designated caregiver of your pets. There is no mechanism to distribute the funds over time or based upon the continued care of your pets. Again, the designated caregiver may use the funds to purchase anything immediately upon receipt rather than reserving the funds to care for your pets.
COST OF A WILL
The cost of a will is generally less expensive than a trust, but if your circumstances are simple rather than complex, the cost of a trust may not be very different from a will and it is certainly worth the time to compare the cost with more than one attorney. The cost can range from $100 to $500 on average, but varies from state to state and city to city. I once had an attorney in Phoenix, Arizona prepare my trust to include my pets and the cost was $1,200. Over 8 years later, I had an attorney in Ocala, Florida prepare my trust and the cost was $480. Also, keep in mind that as much as 85% of wills can go into probate in many states and probate fees may add to the cost of your estate.
HOW TO PROTECT YOUR PETS IF YOU HAVE A WILL ONLY
So, if you opt to have a will rather than a trust, is there a way that you can protect your pets if you go into nursing care before you pass away or if there is a gap time period while your will is in probate? Yes, Perpetual Care provides you with a Pet Life Care Agreement Template to assist with providing for their care in any situation prior to an actual death event. You may use the Pet Life Care Agreement with the person or organization designated as the caregiver of your pets in your will. It is simple and easy to use and once both you and your designated pet caregiver sign the agreement, it goes into effect immediately. To obtain a copy of our template please visit our website at www.perpetualcare.org/estate-planning. (Note that Perpetual Care documents are reviewed by our legal counsel, however, laws are different from state to state and they are always changing, so we do recommend you have your attorney review it for modifications prior to signing it.)
TRUSTS AND PETS
If you have a Living Trust, it usually includes what is referred to as a “pour over will” within the trust as a legal protection to cover unexpected circumstances. It is also worth noting that the Executor of the will and the Trustee may be the same individual, although they don't have to be.
ENFORCER (PROTECTOR) : This is a person, business or organization, that is separate from a trustee, and whose duty it is to ensure that the terms of the trust are followed. The role of Enforcer or Protector is not standard within a trust and you must ask your attorney to include it. There are those who believe that this is actually a critical role for any aspect of a trust. So when does it make sense to add that role in relation to your pets?
An example would be if you designate a person, perhaps a friend or family member, as the caregiver of your pets and leave funds for their care to be distributed annually as long as your pets are alive. The Trustee’s role would be to disburse those funds annually, but what if you want it based on your pets being given veterinary care, vaccinations and they are safe and happy, the trustee might be willing to perform that role, but most trustees would probably not know what to do or how to do it when it comes to your pets and so you may want to consider including an Enforcer or Protector. The Enforcer or Protector could be required to make a home visit, verify a medical record and visually examine your pets.
PERPETUAL CARE AS ENFORCER
One of the services that Perpetual Care performs is the role of Enforcer or Protector. If you wish to designate someone to be your primary caregiver, and you choose to designate Perpetual Care as Enforcer, Perpetual Care would verify the proper care through review of veterinary records and in person through annual home visits, and who would have the authority to act if your pets are not being given proper care.
Perpetual Care can be named as Trustee, Enforcer or Caregiver as you need to ensure the proper care and use of your funds. When Perpetual Care is the designated caregiver for your pets we do rehome your pets using our very thorough adoption procedures. If they are adopted into a new home, each year, before we will release funds to the adopter, we verify a veterinary record to ensure they are current on vaccinations and treatments and we perform a home visit, whether specified within the trust or not. For information about enrolling your pets with Perpetual Care, visit our website at www.perpetualcare.org/servces-6.