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Article used by permission
- by Daniel
P. Kapsak, JD, MDiv
- The Kapsak Law Firm, LLC
- dkapsak@kapsaklaw.com
Horse and other pet owners have long struggled to provide for
their animal companions in the event of the owners? death or incapacity.
Colorado has addressed this growing need through the establishment of Pet
Trusts.
Now, under Colorado law (CRS ?15-11-901), a trust may be
created to provide care for designated domestic or pet animals as well as their
offspring in gestation. Under this statute, pet owners may designate not only
the most appropriate person to care for the animal?Caretaker, but also the
person best suited to manage the assets set aside for the benefit of the
animal?Trustee.
Pet Trusts may be created:
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Through a
specific clause in a Will or Revocable Living Trust that would come into effect
upon the death of the creator of the Will or Trust; or
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Through a
?stand alone? Pet Trust established and funded at the time the trust is created.
Generally, the creator of the Pet Trust wishes to provide for
the care and financial support for the feeding, watering, grooming and
veterinary care of his or her animals, not only those owned at the time of the
creator?s death (or the establishment of the separate trust), but also any
offspring in gestation.
The Caretaker (and successor caretaker) is appointed to make
all decisions regarding the location where the animals shall live, as well as
the diet, exercise, breeding, training, and veterinary care of the animals that
are applicable. The Caretaker is given full and complete control and authority
regarding veterinary care and treatment of the animals up to and including
determining whether or not to euthanize the animal, based upon criteria set out
in the trust. Typically, the Caretaker will be responsible for obtaining from a
licensed veterinarian an annual statement of health and well-being of the
animals to present to the Trustee as a means of monitoring the health condition
of the animals.
The Trustee is appointed to manage the funds left for the
benefit of the designated animals and generally is directed to distribute as
much of the net income or principal, or both, of the Animal Trust, as the
Trustee determines advisable to provide for the health, maintenance and support
of the animal beneficiary or beneficiaries under the Animal Trust. These
distributions may be paid to the Caretaker or by direct payment of the animals?
expenses. Understandably, no portion of the principal and income may be
converted to the use of the Caretaker or the Trustee, other than for reasonable
trustee fees and expenses of administration, or to any use other than for the
trust?s purposes or for the benefit of the animal beneficiary or beneficiaries
under the Animal Trust. The trust terminates when there is no living animal
covered by the Animal Trust, and the creator of the trust may designate to whom
any remaining assets are to pass.
As a check and balance, the Caretaker generally has the
authority and duty to enforce the intended use of the principal and income of
the Animal Trust including the obtaining of equitable relief from the
appropriate court in the jurisdiction where the animal beneficiaries are
located. However, if the Caretaker is also acting as the Trustee, any remainder
beneficiary under this trust may enforce said income and principal provisions of
the Animal Trust. |
