Article used by permission - by Daniel P. Kapsak, JD, MDiv
- The Kapsak Law Firm, LLC
- dkapsak@kapsaklaw.com
Horse and other pet owners have long struggled to provide for their animal companions in the event of the owners’ death or incapacity. Colorado has addressed this growing need through the establishment of Pet Trusts. Now, under Colorado law (CRS §15-11-901), a trust may be created to provide care for designated domestic or pet animals as well as their offspring in gestation. Under this statute, pet owners may designate not only the most appropriate person to care for the animal—Caretaker, but also the person best suited to manage the assets set aside for the benefit of the animal—Trustee. Pet Trusts may be created: Through a specific clause in a Will or Revocable Living Trust that would come into effect upon the death of the creator of the Will or Trust; or Through a “stand alone” Pet Trust established and funded at the time the trust is created.
Generally, the creator of the Pet Trust wishes to provide for the care and financial support for the feeding, watering, grooming and veterinary care of his or her animals, not only those owned at the time of the creator’s death (or the establishment of the separate trust), but also any offspring in gestation. The Caretaker (and successor caretaker) is appointed to make all decisions regarding the location where the animals shall live, as well as the diet, exercise, breeding, training, and veterinary care of the animals that are applicable. The Caretaker is given full and complete control and authority regarding veterinary care and treatment of the animals up to and including determining whether or not to euthanize the animal, based upon criteria set out in the trust. Typically, the Caretaker will be responsible for obtaining from a licensed veterinarian an annual statement of health and well-being of the animals to present to the Trustee as a means of monitoring the health condition of the animals. The Trustee is appointed to manage the funds left for the benefit of the designated animals and generally is directed to distribute as much of the net income or principal, or both, of the Animal Trust, as the Trustee determines advisable to provide for the health, maintenance and support of the animal beneficiary or beneficiaries under the Animal Trust. These distributions may be paid to the Caretaker or by direct payment of the animals’ expenses. Understandably, no portion of the principal and income may be converted to the use of the Caretaker or the Trustee, other than for reasonable trustee fees and expenses of administration, or to any use other than for the trust’s purposes or for the benefit of the animal beneficiary or beneficiaries under the Animal Trust. The trust terminates when there is no living animal covered by the Animal Trust, and the creator of the trust may designate to whom any remaining assets are to pass. As a check and balance, the Caretaker generally has the authority and duty to enforce the intended use of the principal and income of the Animal Trust including the obtaining of equitable relief from the appropriate court in the jurisdiction where the animal beneficiaries are located. However, if the Caretaker is also acting as the Trustee, any remainder beneficiary under this trust may enforce said income and principal provisions of the Animal Trust. | 
