Law Office of Jay Fleisher, P.A.

My wife and I have two great cocker spaniels, Katie and Cassie, and Katie has some challenges that require extra care.

Katie and Cassie are part of our family. If you’re reading this, then I suspect that you, too, have a pet you care about.

A while ago, we updated our estate planning documents and started thinking about Katie and Cassie and what would happen if we could not look after them. We wanted to make sure they would be fine, and we have friends and relatives we hope would set up and care for our pups, but you never know. What would happen if they didn’t volunteer to watch over Katie and Cassie?

Luckily, the state of Florida enacted a law called “Trust for Care of Animal,” found at Florida Statute 736.0408. The law applies to all types of pets and even other animals and gives you the right to create a trust specifically for your pets or animals. The trust will last as long as they are alive and provides funds for their care, if for any reason you’re not able to do so. When your pets pass on, the remaining assets in the trust are paid to the individual or organization you name in the pet trust.

Your pet trust can be created as an addition to your existing living trust, as a separate living trust or under your will, if you do not have or want a living trust. If you create and fund your pet trust while you’re alive, instead of making a provision in your will, you should be the first trustee of your pet trust. You then name another person or persons in your pet trust – called a successor trustee – to take care of your pet after you pass on or otherwise become incapable of taking care of the animal. You may also name an institution as successor trustee, such as a local animal shelter organization. Just make sure to check with the organization first, before naming it.

The pet trust law also requires that as long as your pet is alive, any assets in your pet trust must always be used to support your pet and not for the personal support of your successor pet trustee. If you wish, however, you may provide that the successor trustee receive something for their effort, either during your pet’s life or after.

Care should be taken to determine the amount with which to fund your pet trust. A review of annual amounts spent to date for your pets should be made. Consideration should be given to the expected number of years your pet will live and possible medical conditions that might come up when your pet is older.

If you create your pet trust as part of your existing living trust, the funding of the pet trust can be adjusted periodically as the required amounts come into sharper focus. if you have the slightest concern that the person you’ve named to look after your pet when you pass on might not always be up to the job, the law also lets you name a “trust protector.” That is someone who can look over the shoulder of the person you’ve selected as successor trustee for your pet trust, to make sure the care of your pet is what you wanted.

If, for any reason, you do not wish to create a trust or as part of your existing living trust, then you should prepare a separate pet power of attorney or add an amendment to your existing durable power of attorney to address your pet’s needs. If you have pets that are your companion, don’t leave their fates to chance if you are unable to provide their care. Please create a separate pet trust for them; or add a provision to your existing living trust or will; and consider a pet power of attorney to ensure their continued good care.

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Attorney Jay Fleisher practices estate planning and nonprofit organizations law at his namesake firm in Palm Beach Gardens. He is a member of the Estate and Probate Law Committee and Technology Committee of the Palm Beach County Bar Association; and the Nonprofit and Charitable Organizations Committees of the American and Florida Bar Associations