03/21/2013

Another Look at Virginia's Pet Trust Law

The Virginia pet trust law, known as the "Trust for Care of Animal" took effect on July 1, 2006. It provides that a trust can be created for the care of an animal living during the trust grantor's lifetime. The trust ends on the death of the pet, or if the trust cares for more than one animal, on the death of the last pet to die.

Most Wills and Trusts attorneys have standard language they use in creating pet trusts, whether in a Will or as part of a living trust. The Virginia law provides the default conditions, in case the trust document is silent on a key issue.

Some of the default provisions:

  • A trust authorized by the Virginia law may be enforced by a person appointed as enforcer in the trust or, if no one has been named to that role, by a person appointed by the court. A person having an interest in the welfare of the animal(s) may request the court to appoint a person to enforce the trust or to remove a person appointed.
  • A person appointed by the court is entitled to reasonable compensation, with the funds taken from the trust.
  • No accountings, bonds or reports are due, unless ordered by the court or if the trust document requires such reporting. The reason is that the trustee of a pet trust has a fiduciary responsibility to follow the terms of the trust and act in the interest of the beneficiary animal. Fiduciary duties can be enforced by the court if they are violated.
  • Trust property can only be used for its intended purpose of caring for the animal, unless the court determines that the value of the trust property exceeds the amount required for the intended use. (Leona Helmsley lives on in Virginia!).
  • If the court determines that trust property is not needed for the care of the animal, it can be returned to the grantor, if living. If the grantor has died, what happens to the trust assets depends on where the pet trust is placed in the Will or Living Trust. If the Pet Trust is listed before the residuary clause (the one that says, "...and the rest, residue and remainder of my estate shall be distributed to ..."), the trust property is to be distributed to the beneficiaries named in the residuary clause of the Will or trust. If the pet trust appears in the residuary clause itself, property will be distributed to the grantor's "successors in interest", generally his closest blood relatives.

Reading between the lines of the law, it is not possible to have an endless series of pets cared for under a pet trust; the beneficiaries must have been alive during the grantor's lifetime. The law does not distinguish what type of pets are covered, so your Appenzeller Spitzhauben exotic chicken can be the beneficiary of a pet trust. Also, If a grantor creates a pet trust with the intent of caring for a pet during his own lifetime, it is just as enforceable as one that comes into existence after the death of the grantor.

 

Law Office of Eileen Guerin Swicker 20 W Market St. Suite E, Leesburg, VA 20176 Tel: 571-918-0616 Fax: 703-459-9620