Recently, I have seen posts on Facebook horse groups that ask if people have plans for the care of their horse if they are incapacitated or die. Many people say they have talked to a friend or they have written some informal agreement. Unfortunately, neither or those options are ones that will hold up if the person decides not to take care of the horse. Luckily, there is a legal vehicle that allows you to plan for your horse’s future in the event you are incapacitated or die. That document is called an animal trust, and you can have one for every animal in your family, not just your horse. Currently, every state and the District of Columbia had some form of legislation that allows for animal trusts. While an animal trust is a stand-alone document so it doesn’t need to be included in your estate plan, it is a good idea to let your estate planning attorney know that you have or want one.
Animals as Property Under the Law
Under the current law in every state, animals are considered property. This means someone literally cannot legally step in and take care of your animal if anything happens to you because they do not own your animal. For example, if you are in a coma and your riding buddy decides to move your horse to a less expensive boarding barn during that time so she can take over board payments for you, she could be charged with theft, no matter how good her intentions. She also could not access your checking account to make the regular monthly board payments she knows you would want to make to keep your horse where it’s currently boarded. She would literally be helpless to intervene if the barn owner decided he had to file legal papers to seize your horse and then sell it to pay for unpaid boarding costs if several months went by while you were incapacitated and unable to take care of things. We all would hope that a boarding barn owner would understand but sometimes finances take first priority, especially when it’s a business that relies on that income.
The way around this problem is to create an animal trust. The trust becomes active if you are incapacitated or when you die. Once you are no longer incapacitated, it is no longer active and returns control to you to handle matters concerning your animal.
An animal trust gives you the ability to provide funds for your animal’s care and to include specific instructions concerning that care. When you set up the trust, you set aside enough money in it to take care of your horse in the manner you prefer. How much money should you put into the trust? It depends on how long you want it to last. Write down a monthly budget that shows how much it costs to take care of your animal. Then decide how many months you want to provide care. For example, you may want to provide care for six months and then have a provision that if you have not regained capacity by then, you want your animal sold to someone or given to a specific person. If you want your animal taken care of after your death, you could put in enough money to care for him for several years. Make sure that the amount is reasonable, though. While animal trusts are generally not challenged in court, an argument could be made to reduce the amount you have left for care if one of your relatives or someone you left an inheritance to claim that the amount to care for your animal was excessive. Keep in mind that you can add money to the trust. So start with what you can afford and add more if that works best for your budget.
An animal trust also allows you to name a trustee, which is the person who will take care of your animal if something happens to you. You can be as specific or general as you want concerning that care. You can leave it up to the trustee, or you can put in specific provisions you want the trustee to follow. For instance, you can include directions concerning where your horse is stabled, how she should be fed, and additional instructions about the farrier and vet visits. You can even stipulate specific things such as how you want your horse to be blanketed and special treats she should get fed. It’s always a good idea to talk to the person you want to name as trustee before you set up the trust, to make sure she can take on that responsibility and is comfortable following your directions for your animal’s care. Depending on your state, there may be other people included in the trust, such as a vet who makes sure the animal is being taken care of properly.
When you decide you’re ready to create an animal trust, contact an animal or equine lawyer in your state so you can be sure the state’s legal requirements for the trust are met. If you are a Massachusetts resident, please feel free to contact me to discuss one. Be sure to revisit the trust every year to make sure the funds you’ve set aside are still adequate and to make sure you don’t want to change any of the instructions for your animal’s care. Then enjoy the peace of mind knowing your animal will be taken care of if anything unexpected ever happens to you.
This blog post is for educational purposes only. It does not create an attorney-client relationship. Seek an attorney’s advice for your specific situation.