Trusts


What will happen to your pets if you die or become disabled or ill?

I love my pets. They are members of my family.  I know many others that feel the same way and want to make sure that their four-legged, feathered, or finned friends are cared for in their absence.

Pets are considered personal property under the law.  If pets are not mentioned in a will, they pass to your heirs in the same way as any other personal property.  Your family may have no choice but to bring fluffy to a shelter, leaving your treasured pet homeless or worse yet, euthanized.

Proper planning can ensure that your furry family members are cared for in your absence.  Identify and appoint someone to care for your animals.  Speak to the person you choose to make sure that they will step up and handle any special needs your pets may have.  Refer to your pets generally and not by name, so you don’t have to update the will when you get a new animal.  Consider setting aside money for the care of your pets, especially if they have special needs.

Florida law allows you to create a trust for the care of an animal, which terminates upon the death of the animal.  One can name a person to oversee a pet’s new owners and any funds set aside for the care of the pet.

Florida Statutes  736.0408, Trust for care of an animal (2009):

(1)  A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, on the death of the last surviving animal.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3)  Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor’s estate

You can also specify other ways you want your pets to be included in your will.  Every will I create has a section on burial or funeral arrangements.  In that section, one may direct the personal representative to have the ashes of a deceased pet be buried with the owner or spread in a particular place.

If you have any specific questions, please contact me.

Lesly C. Longa is an attorney helping Floridians with estate planning and civil litigation.  She has a JD from Boston University and is licensed to practice law in three states.  Please note that the information provided here is not legal advice and does not create an attorney-client relationship.  For legal advice, consult with an attorney.

Here is an article from Pennsylvania Estate Planning and Taxation Attorney, Steven J. Fromm:  

Michael Jackson & Farrah Fawcett: Estate Plan Wake Up Call

You can choose from many “do-it-yourself” last will and testament form kits.  So, is it worth the money to pay an attorney to write your will for you?  Well, an attorney may be less expensive in the end.

In their consumer pamphlet on wills, the Florida Bar states, “No sensible person would employ ‘just anyone’ to fill teeth, take out an appendix, or deliver a baby.”[1]  So why do the same for your important legal documents?  If you really are trying to protect the financial security of your loved ones, don’t you think it is worth the money to consult with a professional?  For those that do not agree, their heirs will probably have to spend a fortune on lawyer fees to sort out the mess after their passing.

A Will can be contested if it was not properly drafted, signed, or witnessed in accordance with the applicable state laws.  Laws regarding Wills and the administration of estates vary by state.  So Florida law is different from, say, California law.  For instance, in Florida we have real property law, such as Homestead, which takes precedent over estate planning tools.  What state laws, if any, were used or considered when your DIY Will was drafted?  Who knows.

While you may find a kit that claims to have forms for Florida, buyers beware:  every kit will make you acknowledge that it does not guarantee that it is able to do what it promises to do.  That’s right, it may not provide you an enforceable last will or trust.  Sadly, the warnings pop up at you after you buy the software, but most of us do not read them.

When you accept the terms, you are likely agreeing that you understand that the software you bought to create important legal documents may not achieve the purpose you intend and does not offer legal advice.  In fact, it makes clear that it does not provide you any value.  It is as good as a blank piece of paper.  Just read it for yourself.  Take, for instance, Findlaw Forms’ Conditions of Use, which warn users that, “We do not provide any express or implied warranties of merchantability, suitability or completeness for any of the products or services for your particular needs.  The products and services are used at your own risk.”

Suze Orman, who offers financial planning advice on TV, sells a Will & Trust Kit as well.  Her Terms and Conditions similarly state in relevant part:

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUZEORMAN.COM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  SUZEORMAN.COM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

She wears snazzy jackets and has plenty of spunk, but that does not make her qualified to offer legal advice.  For all Suze (or her company) knows, your designated beneficiaries may not get what you think they will because she can’t guarantee that the forms are fit or reliable for any use, let alone use as a Last Will or a Trust!  Lawyers provide legal advice and are liable for their professional negligence.  Lawyers guarantee you they will use their best professional skill.  Moreover, many lawyers charge affordable fees.

Ultimately, when you use one of these form kits, you are taking a huge gamble on your family’s financial security because your documents may not be legally enforceable.  People with very limited funds and a modest estate may still find that one of these kits is worth the uncertainty.  If you really put family first and you have any money or property to leave them, there is no way you should rely on a do-it-yourself form instead of seeking the assistance of counsel.  Contact an attorney in your state.  A Florida estate-planning attorney can help you with this process, answer your questions, and help you plan for your family’s financial security.

Thank you to The Consumerist, a national consumer advocacy website, for featuring this article!

Please do not hesitate to contact me with any questions, or post your comments below!


[1]Consumer Pamphlet: Wills Trusts & Estates, The Florida Bar, available at:  <http://www.floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/a0091ab18d4875d085256b2f006c5b75?OpenDocument>

The purpose of the initial consultation is for you, the client, to meet the attorney and share your thoughts, concerns, and needs with them.  The attorney will tell you what, if anything, can be done to address your concerns, and how much it will cost you.  The purpose is not to give the client definitive legal advice, as it may be impossible to fully assess the matter at the first meeting.  After or during the meeting, the client decides whether to hire or retain the attorney.  If the attorney chooses to handle your case, the attorney will give you a retainer agreement or contract for legal services that quotes the fee.

It is important to come to your meeting prepared.   I ask clients to bring their current will, if any, and tax returns for the last two years.  Being ready for the meeting also entails thinking about what your assets are and who you would like to give them to before going to the estate planning meeting.  Think about whether you have any beneficiaries with special considerations.  Maybe your child has special needs, or you have a diabetic cat.  You should also consider what information others will need if they are going to handle your family’s financial matters in your absence.  Tell the attorney exactly how your assets are held. 

Many attorneys will provide you with a form that will help you organize the information you need for the planning session, as we call it here.  I am providing a copy of the form my firm uses here: estate planning questionnaire.  After scheduling an office consultation, clients fill out the form and either mail it in before the meeting or bring it in with them.  Some clients are more comfortable providing the information requested in this form in person during our initial consultation and that is okay too.  Any information clients provide is confidential. 

An estate planning attorney licensed in your state will be able to help you create enforceable documents under current state law.  Do not hesitate to ask about fees up front or whether an attorney will be meeting with you.  At my firm, you will always meet with me, and I will personally customize estate planning tools for you.  I use value-based pricing and will charge a fixed, flat fee for most services.  Half of the fee will be payable in advance, with the other half due upon completion.  Please do not hesitate to contact me to schedule an estate planning consultation or a telephone consultation with me.  I look forward to hearing from you!

If you already have a will, there are certain events that may trigger the need to service or update your estate plan. 

  • Marriage, divorce, or separation
  • Arrival of a new child by birth or adoption
  • Substantial changes in the value of your assets
  • Loss of benefits or change in business
  • Decline in health
  • Purchase of a property
  • Sudden need to take care of a family member or friend
  • Death of a family member or spouse
  • Move to a new state
  • Tax law changes
  • Desire to pick a new successor beneficiary, trustee, representative, guardian, or administrator.

The Florida Bar has created consumer pamphlets to provide information to the public.  I highly recommend reviewing the pamphlets on wills, trusts, and estates.  The pamphlet can be found by visiting www.floridabar.org and clicking on the consumer information tab under public information.  To schedule an initial consultation, please contact me, a Florida Estate Planning Attorney.

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