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If you have a beloved pet, there are ways to ensure they are cared for after your passing. An Austin estate planning lawyer explains.

Can an Estate Plan Include Provisions for Pets in Texas? Answers from an Austin Estate Planning Lawyer

The short answer is yes! You can absolutely provide for pets through an estate plan, and many people do. It is becoming more common among pet owners who plan their estates, since in today’s society pets are often seen as family members. There are several different ways you can do this.

Typical Estate Plan Provisions for Pets

Bequest in a Will

You can make a bequest in your will naming a caregiver and allocating funds to care for the pet, since Texas law considers a pet to be personal property and therefore it cannot own assets directly. A bequest relies on the willingness of the person that you name to use the funds as you intended, so choose someone you trust to leave the funds and care of your pet to. Discuss your wishes with them before your passing.

Be aware, though, that once you pass, there is no way to guarantee that the terms in the bequest will be carried out according to your wishes. Terms in a will are not legally binding, and therefore a bequest is not legally enforceable. You are trusting in the character and truthfulness of the person you leave the funds and your pet to; if the person does not choose to use the funds as you indicated in your will, there will be no legal repercussions for them.

Pet Trust

You can create either a statutory pet trust or a custom-drafted trust. Both are provided for under Texas law, Statutory pet trusts can be fairly straightforward, following default rules laid out in the law. You might, for example, leave $3,000 for your cat’s care, and the law will direct how it is managed. A statutory trust requires fairly simple decisions and has clear terms about who manages the trust and when it will end.

Custom-draft trusts are somewhat more complex and more expensive to set up but are useful if you want to tailor the terms to specific needs; for example, if you need particular care for a pet or have unique funding stipulations. A custom trust gives the owner more control of the terms, like who will care for your pet, how much should be spent on what, who will care for your pet if the caregiver you chose cannot do so, and anything else you wish to specify.

Texas State Law

The Texas law providing for the creation of a trust for an animal or animals to be cared for is part of the larger Texas Trust Code, which means that pet trusts are enforceable by law and are recognized statewide. The specific law, Texas Property Code Section 112.037, has been in effect since 2006. You can set up a pet trust either during your lifetime (in vivos) or in your will (testamentary).

A pet trust may be enforced by the person named in the trust, or, if there is no person named in the trust, then someone appointed by the court. If there is a person interested in the welfare of the animals provided for by the trust, then that person may request that the court either appoint someone to enforce the trust or to remove someone who has been appointed. The law specifies that the trust will terminate as soon as the animal passes, or if more than one animal, when the last surviving animal named in the trust passes.

Setting Up a Pet Trust

Choose a Trustee to Manage the Trust

When you set up a pet trust, you will need to designate a trustee who will manage the trust funds. A trustee could be a family member or personal acquaintance, or it could be a professional like a banker or lawyer. The key is designating someone who has the ability to manage finances and is someone you trust to oversee finances.

Appoint Someone to Take Care of the Pets

You will also need to specify in the trust who you wish to care for your pet or pets. It’s a good idea to contact this person and ask them if they are willing before you name them in the trust as the caregiver. You can give clear instructions in the trust on how the pets should be fed or exercised. You should also, if you think it’s necessary, give instructions about living arrangements and veterinary care.

Consider appointing a back-up caregiver in case something happens to the caregiver you originally appointed. If your pet is a typically long-lived species, such as a tortoise, you may need to create a plan for succession of caregivers since the pet will most likely outlive at least one if not more caregivers.

Outline Any Specific Needs

You can also give instructions regarding the pets’ specific needs, such as medical conditions or diet. However, it’s wise to avoid being overly specific. Instructions that are too specific may not be followed if they are too difficult for the caregiver’s circumstances. In addition, keep in mind that your pets’ needs may change over time, and the instructions may no longer apply.

Funding a Pet Trust

The trust must be funded with sufficient assets to cover care for the pet during the expected lifetime. This will, of course, vary significantly by species. Dogs and cats typically live anywhere from 10 to 20 years; exotic pets, such as tortoises, may live well over 150 years. You will need to plan for how much will be needed in the trust to cover the pet’s expenses for their lifetime. Take into account annual expenses such as food, regular vet care, and potential medical expenses.

Termination of a Pet Trust

A pet trust will terminate when the last animal named in the trust passes. At that point, the trust will end, and the remainder of the funds will be distributed to beneficiaries named under the will, or, if the will does not designate beneficiaries, then the heirs of the deceased.

Potential Challenges

Adequate funding can be a challenge, especially if it strains estate resources. This may be a particular problem if the trust is for a long-lived species, but it could also become an issue simply due to rising costs. Be sure to consider the high cost of living in Austin and take the rate of inflation into account as you set up funding for the pet trust.

Also consider the living circumstances of the caregiver you appoint. Are they in an area with access to good local veterinary care? Do they have the means to get the pet to the vet or to an area needed for the pet’s care (such as room to run outdoors)? If your trust does not consider the circumstances of the caregiver or lists terms that are too specific, the caregivers may simply disregard them either out of frustration or inability to follow them.

If you are concerned about who will take care of your pets after you are gone, reach out to us at Ford + Bergner, LLP, in Austin, TX. We also serve the Dallas and Houston areas.