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Protecting pets in perpetuity

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Indiana Lawyer Focus

The non-profit American Pet Products Association estimates that this year, Americans will spend $50.84 billion on their pets – not surprising, considering the ever-increasing variety of treats, toys, and services for animals. But what happens to these pampered pets after their owners die? Are they consigned to a life of off-brand food? Forced to take up residence in a cramped kennel?

Since 2005, Indiana residents have had the option of creating a trust for the benefit of their pets to ensure that their animals will continue to enjoy the quality of care to which they have become accustomed. But estate-planning attorneys say that despite some of the obvious advantages trusts have over wills, they haven’t yet seen many people creating these legal protections for pets.

A niche practice

In 2007, Jeffery Stinson, managing partner for Severns & Stinson, wrote an article about pet trusts.

“One of my reasons for writing that article when I did was that I had about three clients in six months interested in doing something for their pets,” he said. Thus far, however, he has had no requests to set up a pet trust. And Stinson admitted he has not created a pet trust for his own dog, either.

“They say the shoemaker is always the last one to have shoes,” he said.

Former State Representative Trent Van Haaften, an attorney with Evansville’s Bamberger Foreman Oswald & Hahn, said that several years ago, one of the firm’s clients had inquired about how to provide for horses through an estate plan. Van Haaften learned that many states already recognized pet trusts, so he decided to introduce the pet trust bill in 2005.

“I think this probably holds true with most firms, that when you’re talking about estate planning, you’re essentially trying to advise your clients of all the available options out there,” he said. “I don’t know how much it’s been used across the state, but it’s just another option for people.”

Hall Koehler attorney Shawn Scott said she has a pet trust for her two Boston terriers. “And that is how I became the pet trust lawyer in this office,” she said. “Probably more than half of lawyers think they’re really stupid, but some people see the merit.”

Scott said one reason lawyers may snicker at the idea of pet trusts is because of the associated taxes.

“From a practical standpoint, in Indiana, we have inheritance tax, so it’s going to be a larger taxable gift than if you gave it to your kid,” she said. “This trust is taxed at the highest rate, so people think … why would you pay this tax?” And then I think beyond that, it’s just people’s opinions of animals. They think: What’s it really matter?”

Nevertheless, for some people, money is no concern when it comes to making sure their pets have a comfortable life.

“I would find that most people that are inclined to do this don’t care, they put significant financial resources into their pets,” Scott said. “And I haven’t done a lot of these. It doesn’t have a huge market, because it does take extra lawyer time – it’s kind of complicated; it’s more complicated than drafting for kids.”
 

dible-jeffrey-mug.jpg Dible

The American Society for the Prevention of Cruelty to Animals advises pet owners that they will spend a minimum of about $1,218 per year on basic care for a large dog. That includes food, toys, and regular veterinary care, but not boarding or unexpected medical treatments. With the rising costs of goods and services – and no minimum required for funding a pet trust – it’s not just aging socialites who are planning to provide for their pets.

“I have a pet trust in my will, and I’m not old or rich,” Scott said. “But we have two dogs that we care about … we really love our dogs.”

Untested waters

Jeffrey Dible, of Frost Brown Todd, led a continuing legal education program on pet trusts for the Indiana Continuing Legal Education Forum last year. He said he is unaware of any pet trusts being challenged in court. But because Indiana’s pet trust statute is so new, it may be several years before any of those trusts become active.

“If you’re careful enough in designing and drafting them … I think it would be pretty hard to break them or to be found invalid,” Dible said. Someone would have to prove that a decedent was not of sound mind or was tricked when setting up the pet trust, he explained, adding that the fact that there’s now a statute makes them harder to set aside.

A pet trust terminates with the death of the animal, or when multiple animals are named in a trust, with the death of the last surviving animal. Because a pet may die before the trust is defunded, a remainder beneficiary must be named. Choosing that remain-

der beneficiary wisely may be the key to avoiding court challenges, Dible said.

If, for example, the decedent’s grandchildren are named as remainder beneficiaries, they could argue that they are entitled to a bigger piece of the pie.

“The grandkids would be in a position to go into court and say: We think too much money is being reserved or set aside for these animals, and we want to change things,” Dible said.

In materials Dible prepared for his CLE presentation, he wrote: “If the settlor or testator who creates a ‘pet trust’ wants to deter human family members from challenging the level of funding of the trust, nothing in Indiana‘s Trust Code would prohibit the settlor or testator from including a provision that would automatically allocate all court-determined ‘excess’ assets to some other taker-in-default (such as a charitable organization) who would not have a strong incentive to object to the level of the trust’s funding.”

Indiana law regards pets as personal property, meaning someone can’t bequeath money to a pet any more than he can bequeath money to his favorite chair. And even when a person’s will sets aside funds for pet care, there is no guarantee that the decedent’s last wishes will be honored.


scott-shawn-mug.jpg Scott

“There’s no enforceability,” Scott said. “It’s just like when you give someone a diamond ring – you could sell it the next day.”

In a hypothetical worst-case scenario, an unscrupulous executor could pocket your pet’s funds and dump your animal at the nearest animal shelter. Setting up a trust makes that scenario less likely, although it never hurts to add some extra provisions to thwart thieves.

Scott said that some pet owners include provisions in their trusts requiring the named caretaker to have a veterinarian perform annual DNA analysis on the pet.

“They have some requirements to make sure that this is Fluffy,” Scott said, adding that people charged with care of the pets could find a lookalike replacement for a pet after it dies and continue milking the trust.

Scott said that if she and her husband were to die unexpectedly, she is confident their friends would look after their dogs. But in the unlikely event that some tragedy should befall her friends too, she wants her pets to be protected.

“They just become a part of your family. It’s hard to imagine them not having a good standard of care if you’re not around to do that,” she said. “People like my husband and I, we probably care for our pets – not better – but differently.”•

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  • ok but consider the needs of humans too
    Hmm I love pets, I have my own, and they are cared for lovingly. However this makes me uneasy: property set up for property's benefit; wow. How far we have come from the days when the Founding fathers like jefferson debated abolishing rights of inheritance altogether.

    Maybe people should benefit from property? What happens if you have needy natural heirs and the deceased is a dastardly kind who leaves his millions to a poodle? Sign me up for that one!
  • Great story!
    I agree and love Ms. Scott's rational and commentary on pet trusts. She is right, what will happen to our pets if we pass and then our friends who are to care for them, pass? Always best to prepare for the unknown, she definitely has her clients interests in mind. I never even considered the possibility that my trustee could/would replace my cats in order to reap funds! It's sad we have to prepare for this, but it's so true that we must! Great article, thank you!

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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