Liability of nonprobate transferee – Trick or Treat?

Hold on to your candy kiddos; this is a stickup!

Title 18-C MRS Section 6-102(2) (http://legislature.maine.gov/statutes/18-C/title18-Csec6-102.html) of Maine’s Uniform Probate Code introduces us to a new concept, nonprobate transferee liability.   The statute provides that, except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to any probate estate of the decedent for allowed claims against the decedent’s probate estate and statutory allowances to the decedent’s spouse and children to the extent the estate is insufficient to satisfy those claims and allowances.  In other words, if the probate estate is insolvent, creditors with allowed claims (claims that were timely presented and not denied) can seek recovery from assets passing outside of probate (trust, multi-party accounts, joint tenancy, beneficiary designation, etc.).  Boo- that’s scary!  Thankfully, the statute provides that the liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee, but isn’t that stating the obvious?

This statute makes it important to still probate a will, even if there are no assets, because, in Maine, creditors have 4 months from the first date of the publication of notice to creditors (published in a local newspaper) to present their claims.  Creditors that fail to do so are forever barred from bringing a claim.  In the past, if the probate estate was insolvent, a revocable trust might be liable for claims, but the recipients of property otherwise passing outside of probate, such as assets jointly owned, were not similarly liable. Thanks to Title 18-C MRS 6-102(2), that is no longer the case.

Nonprobate transferees are liable for the insufficiency in the following order of priority:

  1. A transferee designated in the decedent’s will or any other governing instrument, as provided in the instrument;
  2. The trustee of a trust serving as the principal nonprobate instrument in the decedent’s estate plan as shown by its designation as devisee of the decedent’s residuary estate or by other facts or circumstances, to the extent of the value of the nonprobate transfer received or controlled; and
  3. Other nonprobate transferees, in proportion to the values, received.

The above default ordering rules also have the potential to cause trouble unless a will thoughtfully addresses who should bear the debts of an insolvent estate.

The increased statutory allowances (see Title 18-C MRS 2-401 -404) available  to a decedent’s spouse and children, which are often overlooked, may encourage a different type of claim relief where assets of an insolvent estate are encumbered.  In bankruptcy, what I am referring to is sometimes called a “cram down.”  I’ll return to this issue in a future article but, I’ll tell you this, it’s a trick and not a treat.

Happy Drafting!

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Maine’s Transfer on Death Deeds

 

white and brown concrete building

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The enactment of the Maine Uniform Probate Code on September 1, 2019, brought with it Title 18-C M.R.S. § 6-401, et seq., the Uniform Real Property Transfer on Death Act, see https://legislature.maine.gov/statutes/18-C/title18-Csec6-401.html, which authorizes the use of transfer on death deeds, sometimes called “Lady Bird Deeds”.  During life, a transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.  The transfer is not nontestamentary (meaning, it is not subject to probate) but the same degree of capacity required to make a will is required to make or revoke a transfer on death deed.

The essential elements of a transfer on death deed are:

  1. The deed must contain the essential elements and formalities of a properly recordable inter vivos deed;
  2. The deed must state that the transfer to the designated beneficiary is to occur at the transferor’s death; and
  3. The deed must be recorded before the transferor’s death in the public records in the registry of deeds in the county where the property is located.

A transfer on death deed is effective without delivered to the beneficiary during the transferor’s life or consideration (ex. money or money’s worth).

During a transferor’s life, a transfer on death deed does not affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property.   Among other things, it also does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance.  Effectively, it is as if nothing has happened because, in fact, nothing has.  Remember, a transfer on death deed is entirely revocable during life.

If you or a client create a transfer on death deed, should your power of attorney address the circumstances under which an agent (that is, the attorney in fact) under the power can revoke it? Probably.  While a transfer on death deed does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance during the life of the transferor, that does not mean it is without future ramifications.  There will likely be many circumstances where complications with public assistance will arise because of the use of a transfer on death deed that might not have occurred had a more thoughtful vehicle been chosen – one that anticipated the need for future public assistance.

No doubt transfer on death deeds will reduce the number of future ancillary administrations that Maine practitioners will need to deal with and that the courts will have to process.

Happy Drafting!

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Maine’s Enactment of Uniform Probate Code

The Maine Uniform Probate Code (MUPC), Title 18-C M. R. S. § 1-101 et seq., https://legislature.maine.gov/statutes/18-C/title18-Cch0sec0.html, with a delayed effective date of September 1, 2019 (see Section 8-301(1), H.P. 1881- L.D. 1535) pursuant to emergency legislation, revokes Title 18-A. Title 18-C brings with it significant changes to the law, including a new means of collection against nonprobate transferees in insolvent estates, automatic inflation adjustments, transfer on death deeds, multiple-party accounts, changes to the elective share, changes to the intestacy statute, the Maine Revised Uniform Fiduciary Access to Digital Assets Act,  just to  name a few, all of which will alter the preprobate process in some respects and probate practice in many respects.  Many practice forms will need to be revised, including but not limited to Wills, Powers of Attorney, and tangible memorandum bequest forms.   Stay tuned for a series of short articles on this blog that will explore the changes and what you should know.

Got Forms?  The legal wind direction has changed once again!

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Photo by Mat Brown on Pexels.com

Once it is launched, New England Estate Planning (www.newenglandestateplanning.com) will host updated forms, which will be very helpful for the attorney that is licensed in Maine but does not regularly practice in Maine.   Access to forms on http://www.newenglandestateplanning.com is limited to lawyers licensed to practice law in Maine, New Hampshire, and Massachusetts.

Happy Drafting!

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Estate Planning – Attorney Control Sheets

Estate Planning – Attorney Control Sheets

Have you ever wished that you could provide pinpoint directions to your staff for drafting an estate plan by checking boxes, making reference to your intake form or a  memo prepared for the file, all in less than 10 minutes.  Have you also wished that with that information in hand, your staff could process your estate planning documents, provide you with an itemized review checklist and that the service was free?  Sound too good to be true?  Well, New England Estate Planning (newenglandestateplanning.com) seeks to provide attorneys in Maine, Massachusetts and New Hampshire with that ability and much more.

According to the folks at Hotdocs, www.hotdocs.com,  a leader in document automation, “Using document automation technology to generate documents is still not a common practice***.  Instead, staff resort to a range of manual processes to produce tailored documentation. **** Without automation, people can try to save time when producing business documents by creating Word document templates. However, they quickly realize that the more the size of the document increases, the more difficult this method becomes. Other tactics include adding notes or indicators within documents to communicate which elements must be edited and where new information must be entered. Even just checking all instances where variable elements such as names, phrases, company names or legal clauses exist takes time.”  Hotdocs Whitepaper, The-deadly-sins-of-document-production.  That all makes sense, drafting, of course, is bound to be faster, easier, and less prone to error if it is automated.

Of course, that’s all well and good but you still have to give staff directions.  Right?  In my experience, the direction given to staff that assists attorneys with initial drafts is thin, mighty thin.  Perhaps too thin.  After all, it takes a lot of time and effort to drill down issue by issue with staff.  So,  Hotdocs has it half right; having an automated document production is only half the battle.  To really get efficient, and accurate, you have to have a comprehensive means of delegating instructions that can be carried over to your automated drafting program and to really bring it home, you need that system to cover as many elements of your practice as possible.  Of course, I am assuming that you are delegating your drafting but if you aren’t, you don’t know what you are missing!  Lawyers are critical by training but as humans, it just comes naturally when we review the work of others.  When you review the work of someone else, you will be operating naturally at your highest level of critical review possible absent the use of a checklist system (which, even if simple, I recommend), which means your work product will improve simply because you will be seeing it from a more objective point of view.  If you don’t have a checklist system don’t worry, New England Estate Planning will be making one available for you and your staff.

Sure, that sounds great but who wants to spend the time and effort to automate an entire practice?  The folks at New England Estate Planning do.   Take a look at our sample attorney direction packet for drafting a will. Sample Attorney Direction Control Sheet.Will .  Just imagine filling this out (with practice I think you can do it in 10 minutes or less) and having your staff generate a corresponding Will with 100% accuracy to your instructions and with a matching checklist that demonstrates that each aspect of the data entry has been reviewed.  It still might not be perfect but it is getting close, really close.  Now apply your checklist to the same document set.  If the resulting documents are not perfect,  I suspect that the error is a human error (common examples: lazy reviewer, overworked reviewer, review being conducted during the wrong time of day (right after lunch), review being conducted on an empty stomach, or not enough time allotted to review – most of which are manageable factors once you identify the source of the error and adjust your practice accordingly) and not the system.

Happy drafting!

 

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An easy and affordable staff management tool for estate planning attorneys… Hello Trello!

An easy and affordable task management tool for estate planning attorneys… Hello Trello!

Solo and small firms can both benefit from Trello, which offers an easy and affordable solution to the “too much to do and track” problem that we all face for large as well as small projects.  What is Trello? Glad you asked.  Trello is a collaboration tool that organizes projects into boards. At a glance, Trello tells you what’s being worked on, who’s working on what, and where something is in a process.  Imagine a pegboard which you can expand as large as you want horizontally, with columns of movable 3 x 5 cards each of which represents an individual list or topic to which you can, on the back side, attach an unlimited number of sticky notes, photos, attachments from other data sources, documents, emails, and a place to comment and collaborate with your legal team.  Imagine that both the columns or cards are super easy to move (by anyone in your team) so that you can see who is doing what or what has been completed and that you can see all of that at a glance.  Now imagine that you can take that pegboard anywhere you go on your smartphone or iPad, and can access it from any computer (PC or Mac) through the web. That’s Trello!  When your team completes tasks or leaves you a response, you receive one single report during the day which helps manage your email inbox and staff interruptions, avoids actual sticky notes from being left on files and lost or voice messages that you didn’t get to.  With the help of Zapier (yep, it’s an app), it can “zap” directions from one app, such as your client management software to Trello, so, for instance, if my staff opens a new matter in ActionStep, which our firm uses (which is similar to Clio) , a corresponding matter is opened in a list on Trello which I can then assign or begin to manage.   Personally, I use OmniFocus 3 (an app) to collect and organize all my thoughts into lists and then move them to Trello as I want to assign them to staff but I could do this all in Trello.  My use of OmniFocus started after I read David’s Allen’s book, Getting Things Done, which I highly recommend if you want to really begin to take control of your crazy life and make room in your head.  OmniFocus is connected to my iPhone and Apple Watch, which allows me to easily record task items remotely when I am away from my iPad or PC, which I can organize later, so I’ll stick with OmniFocus for purposes of collecting my ideas and then use Trello to delegate and monitor them, though our firm also uses ActionStep’s workflow for this purpose.

Trello is very intuitive, so getting started is easy – even for you Luddites.  There is a free version, but for lawyers that probably isn’t the way you will want to go if you are going to be using client information on your boards.  The business class version will run you about $120 per year per user and the enterprise version about $240 per user a year.  My staff picked it up very quickly and it makes assigning, reviewing and monitoring task assignments simple and effective.

If you decide to give it a try, please let me know about your experience.

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Increase your office efficiency by 90% but wait, there’s more… and don’t forget to pre-register!

 

According to some reports, automating your practice can increase office efficiency by up to 90%. That’s an impressive number.  While I agree that automating your practice can significantly increase your office efficiency, what I appreciate just as much is the decrease in common errors, uniformity in work product among all office users, and the additional time it can return to me.   When I spend less time doing routine matters or revising the same documents for the same errors, I can attend to other things and grow my practice  Over the past 10 years, my law practice has increased tremendously and without automating my practice I would not have been able to keep up with that growth and still kept 9 to 5 hours (for the most part).

What exactly do I mean when I say “automate” a practice?  That can mean a lot of things to a lot of people.   At the most basic level, it means taking the forms, letters, and other documents that you routinely use (assume this is 80% of your standardized work), mapping out 80% of the routine variations that occur, and then integrating that document set and variations with a program that, after a data entry session, will transform your custom interview answers into a draft document ready for your review.  You might call this “intelligent templating.”  The draft might not be perfect but it will: 1) be uniform among all users; 2) be consistent from interview session to interview session  until you modify the template and/or interview; 3) not contain the names or custom information from another client’s document (as will cut and paste drafting); 4) be capable of being processed by a staff person with minimal or virtually no training or legal experience if you have developed a control sheet to allow for this; and 5) can be processed with lightning speed.  Attorney review and edits may still be necessary. Additional custom drafting may be required.  It’s not perfect but it’s a smarter, faster and better way to practice.  As suggested above, automating a practice might also involve control or direction sheets that enable an attorney to quickly communicate custom drafting directions to staff, which can then be implemented by staff.  Our firm has embraced this process, and I think all firms should if they haven’t already.  Further automation may involve the creation and implementation of workflows that follow a file from cradle to grave and ensure proper opening, processing, closing and file storage or destruction in a controlled manner.

Automating a practice takes a lot of time and effort but once completed (is it ever?), an automated practice brings with it increased peace of mind for the lawyer (don’t worry, there is still plenty to stress about), increased available time (time to market, time to develop and improve your forms and systems (one of my favorite past times), spend with family and friends, take on more pro bono services, or participate on charitable boards) and hopefully less potential future liability because your process and document are subject to less random variation.

Automating a practice takes a lot of time and most of us don’t have that kind of time, are happy with commercial drafting services that get us part of the way there and/or don’t have the automation skills or experience to build a custom system – nor might not want to have to maintain it even if we did.  Strangely, I enjoy the practice of automation practice as much as drafting and meeting with clients. I feel that I have the perfect job, as it employs so many of the intellectual tasks that I enjoy. It might come as no surprise then that my practice combines the use of my custom automation efforts, but it also includes the use of a commercial subscription. The commercial subscription offers a lot of valuable tools (videos, listservs as well as national updates) in a convenient format and has forms that I do not want to spend the time automating to the same level of detail.  Additionally, that commercial service’s forms are review and critiqued by a larger number of minds, which, of course, is impossible to do in a small firm practice.  However, because it is nowhere near as board and encompassing as my custom library and because it is far too complicated for my staff to navigate without significant training, my custom automation efforts provide our firm with the efficiency, and state-specific details, that is so critical to automating a practice successfully.

New England Estate Planning (www.newenglandestateplanning.com), a free attorney automation service that I hope I will be launching in the near future, will not attempt to compete at the same level as various commercial drafting services but will bring a new set of automation tools, as well as other features, that may help solos and small firms stay competitive in today’s challenging legal environment.  While registration does not officially begin until January 1, 2020, I am currently requesting that interested attorneys pre-register now (please email me at sgr@brennanrogers.com) to ensure there will be an adequate interest to justify full registration and then launch. 

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Announcing a Free Automated Estate Planning Platform for New England Lawyers – Coming Soon

Over the past several months I have been kicking into high gear a dream of mine; to create a free, yep – totally free, automated estate planning platform for lawyers.  Over the years, one thing after another has prevented this dream from moving forward but things have started to change.  While a lot of work remains, New England Estate Planning (NEEP) will open for attorney registration on January 1, 2020!  I hope the actual site will launch, even if in a beta format, in 6 to 12 months after January 1st.

Frequently asked questions are likely to be:

  1. Will this be open to the public?  Answer:  No.  Only to lawyers licensed to practice in Maine, New Hampshire, and Massachusetts.
  2. What forms will it offer?  Answer:  The forms library is intended to be more expansive than commercial products but less in-depth. Coverage will start with general estate planning documents (will, revocable trust, powers (financial and healthcare-related), letters, deeds, leases, specialized trusts, practice tools, and checklists.  With time and contributions from participating attorneys, the library may be expanded.
  3. Is it really free for laywers?  Answer:  Yes!
  4. Will my information be safe: Answer:   Yes, but you have to do your own risk assessment. The automated service NEEP will use has a dedicated commercial encrypted server.  Answer files are only available to the attorney that creates them.  Documents are delivered by email (in Word or PDF) or can downloaded as directed by the drafting attorney.
  5. Why are you doing this? Answer:  On August 8, 2019, the Maine Supreme Judicial Court sent out a letter to the Maine Board of Overseers of the Bar, the Board of Bar Examiners, the Maine State Bar, as well as others, that attached a summary of a report prepared by Justice Donald G. Alexander and certain members of the Maine bar that, among other things, addressed changes in the market for law and law-related services, the effects of technology on lawyers, the shortcomings of the traditional law practice model, the adequacy of legal training and ethical standards to support needed services to the public in the Twenty-First Century.  That letter reflected concerns that I have been harboring, though in less detail, for some time and not just for myself and my practice but for the future of the practice of law.  As a collective group, it seems we are falling behind the times.   I believe that small estate and elder law practices, like mine or yours, serve a vital role in local communities but have to wonder if they will be viable businesses 10, 15 or 20 years from now.   I believe that empowering lawyers, sharing knowledge and know how, is essential to the future of the practice of law, particularly for small firms and solo attorneys.  I hope New England Estate Planning (NEEP) will develop into a collective shared space for lawyers and may help create new professional connections between the registered attorneys on the site and the professionals that I hope will advertise in the directory of professionals.

To learn more, please visit http://www.newenglandestateplanning.com.  If you want to be reminded when registration begins, please email your name, bar number and contact information to info@newenglandestateplanning.com or sgr@brennanrogers.com.

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Small Practice Management – Balancing Appointments, Signings and Cashflow

There was a time when I took calls and scheduled my own appointments.  As a solo, that an easy way to save money.  As my practice grew, there came a time when I could have shed that role but retained it for control purposes.   When my practice was busy enough that I could not take calls as fast as they came in, I started to rely on my message machine more frequently.  I had better things to do than pick up the phone each time it rang.   When I realized that I was missing clients because potential clients would sometimes hang up when they could not reach a human being, I switched to a virtual receptionist.  I now have a full-time receptionist, though I  still use a virtual receptionist as a backup.  Along with the benefits of a real receiptionist, there also come some drawbacks that I did not anticipate.

When you have the fortune of having a high a number of potential clients calling each day if you are not careful your receptionist will fill your days with new client meetings without regard to your need to work those files and to schedule document executions.    One strategy is to block off certain days as “work” days.   Mondays are a likely candidate to block off.   Another option is to l limit the number of meeting on a given day.   I, personally, like to limit my meeting to two a day and at predetermined times.  If I start booking out too far, I might increase that to three or, should things really get hot, four a day.   I am not at the four meetings a day level in my practice.  I sort of hope that never happens.

When you are a solo or small firm, you will typically need a mix of meetings to make the end of the month numbers work until you have a sizable bank account to fall back on, though, in theory, you should be actively managing your day to day practice to keep from having to ever dip into savings.   How do you communicate this need to your receptionist and have him or her, on a daily, weekly and month to month basis, take into account your firm’s cash flow needs?   One option is to simply hope for the best and let them and luck determine how your month turns out.  Another is to reserve certain meeting times each week for executions but that often won’t work for clients.   Yet another way, which I have recently adopted,  is to try to map out each month (as you go), in an excel sheet, to try to get each week to add up to a certain number and all the weeks in a month to add up to a certain number and to keep coming back to my receptionist with suggestions about how I would like next week, the week after that, and the week after that, to look like in terms of appointments.   I don’t expect my receptionist to be concerned with my business’s cash flow but since when appointments get scheduled control cash flow, the receptionist can be at the center of that process.    More recently we have also begun trying to schedule document execution at the same time the initial appointment is made so that they are separated by 30 days.   Though we have not completed a cycle using this strategy yet, I am hopeful that our workflow process is robust enough now to keep to that deadline-driven process.

I suppose the point of this post is to point out that as your firm moves from one stage to the next, you may find, as I have, that management technique will have to adapt.  Simply because your firm has evolved or has added staff won’t change your need to proactively think about the bottom line or workflows.  Likely you need to focus on those things will only increase.  Cashflow is the lifeblood of a small business.   The person in charge of taking new client calls and scheduling appointments, or the lack of a person doing this, can have a major impact on your bottom line unless you implement (and can maintain) a process that changes that.

If you have a practice management technique that you think would be helpful to others, please share it.

 

 

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SJC rules on Nadeau and Daley Cases

See https://mirickoconnelltrustsandestateslawblog.wordpress.com/2017/05/30/sjc-rules-on-nadeau-and-daley-cases/.

 

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Planning for Pets

I was recently quoted in the Bangor Daily News in an article A Trust fund for a pooch? .  From time to time I do have clients interested in planning for their pets, though it is not a frequent request.   Thankfully the law in Maine and Massachusetts have evolved and allow for pet trusts.  Below are talking points regarding pet trust planning.   These materials are not intended to constitute legal advice and shall not be used to establish proof of the formation of an attorney-client relationship.  These materials are provided at no cost and may constitute a form of advertising.   These materials were prepared for general use. 

1.What is a Trust?

To simplify things, it is important to understand that a “trust” isn’t a “thing” so much as an agreement or arrangement involving at 3 people and some sort of property.  That’s all a trust really is.

The people involved in a Trust are:

  • A Settlor (a.k.a. Trustor, Trust Maker, Grantor, Donor): This is the person that creates or establishes the trust.  In the case of a Testamentary Trust (a trust established under a Will), this is the Testator/decedent.
  • A Trustee: This is the person charged under a trust with a fiduciary obligation to do what is called for by the Settlor of the trust with the trust property for the benefit of the beneficiary of the trust.
  • A Beneficiary: This is the person that the trust is intended to benefit.  The Beneficiary may be one or more people and may change over time.

That’s all a “trust” really is – an agreement between the Settlor and a Trustee that the Trustee will accept property from the Settlor and use that property for the benefit of another, the Beneficiary.

2. The Problem with Animals is…The problem with, and great thing about, animals is that they aren’t human.

  • Historically, pet trusts were invalid for two reasons.
    • There was no human beneficiary capable of enforcing the trust; and
    • The rule against perpetuities: As an animal’s life could not be used as the measuring life, this made pet trusts problematic when considered in light of the rule against perpetuities

3. Law Catches Up with the Times

As demand for pet trusts increased, the law began to bend to accommodate them.

  • Honorary TrustsTrustee must agree to do it or must return it. An early solution was to characterize the pet trust as an honorary trust under which the trust would not be invalid if the trustee was willing to carry out its terms but the law would not enforce the trust for the benefit of an animal.
  • Statutes Evolve: Overtime, states began to adopt statutes that specifically allow for enforceable pet trusts.

Maine Law – Legal Basis for Pet Trust

In Maine, Title 18-B (the Maine Uniform Trust Code) gives us two statutory provisions, Section 408 and Section 409.  I will address Section 408 in some detail but will only generally comment on the application of Section 408. See the end of these materials for Massachusetts’ Law relative to pet trusts.

Section 408. Trust for care of animal

  • What is it? A trust created for the continued care and maintenance of a particular animal or animals.
  • What goes in it? The trust must be funded with some amount of money or property. Excess funds may be subject to removal.
  • Who manages it? A trustee must be designated to administer the trust but an enforcer can also be appointed to oversee the actions of the trustee and caretaker.
  • When is it formed or established? A Pet Trust can be established under a Will or in a separate trust instrument.
  • Who can it benefit? Animals alive during the Settlor’s life.
  • When does it terminate? When the animal dies.

A Review of Maine’s Section 408

             Establishment and Termination of Trust

  • A trust may be created to provide for the care of an animal.
  • Animal must be alive during the Settlor’s lifetime.
  • Trust terminates upon the death of the animal or last surviving animal if there is more than one animal.

             Enforcement[1]

  • A trust established pursuant to Section 408 may be enforced by a person appointed in the terms of the trust.
  • If no such person is appointed, a person may be appointed by the court to enforce the trust.
  • A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust.
  • A person having an interest in the welfare of the animal may also request the court to remove a person appointed to enforce the trust.

             Intended Use

  • Property of the pet trust may generally only be applied to the intended use.
  • Presumably this “intended” use is to provide for the “care” of an animal as that is what Section 408(1) authorizes. However, arguably “care” may be construed broadly to cover items such as food, shelter, medical care, as well as the payment of the fees of an enforcer or caretaker. Point is, ideally the trust will provide some direction as to what the “intended use” of the trust is with regard to expenses.
  • If, however, a court determines that the value of the trust exceeds the amount required for the intended use of the trust, property not required for the intended use must be:
  • Distributed to the Settlor, if living,
  • Distributed to the Settlor’s successors in interest[2] if the Settlor is not living; or
  • As provided by the terms of the trust.
  • Ideally the trust will provide what should occur if a court determines that the value of the trust exceeds the amount required for the intended use. Care should be taken in drafting a pet trust to head off possible claims by others that the trust contains excessive funds. Additionally, care should be taken in funding the trust to ensure that excessive funds do not fund the trust to start with.

          Termination

  • Pet trusts generally terminate upon the death of the animal or last surviving animal.
  • However, should the trust be small (under $100,000), a trust created for the care of an animal can also be terminated by the trustee or court under Section 414 if the Trustee concludes that the value of the trust property is insufficient to justify the cost of administration.
  • Termination of a trust under that section, however, requires that the trustee or court develop an alternative means for carrying out the trust purposes that is consistent with those purposes. See Section 414(3). However, this may simply result in an outright distribution to the caretaker which may or may not be in the best interest of the long term care of the pet.
  • In drafting a pet trust, some consideration should be given to whether or not the Settlor wants to prevent an early termination of the trust under Section 414 and other sections of Title 18-B.

Section 409 and Trusts for Animals Generally

Pet Trusts under Section 408 are distinguishable from trusts having broader objectives such as the prevention of cruelty to animals or the benefit of animals generally such as through the maintenance of wildlife sanctuaries or animal habitat which may qualify as charitable and tax exempt. Section 408 does not address these broader animal-related and wildlife-related arrangements, but Section 409 may be applicable to those animal-related activities that do not qualify as charitable in nature.   However, the scope of the discussion under Section 409 is beyond the topic of “pet trusts” generally and will not be further addressed herein.

4.  Practical Pointers for Pet Trusts

There are numerous practical matters for attorneys to consider when drafting pet trusts. In Maine, due to our informal probate procedures, most pet trusts can be included in a Will.  In other states, such as in New Hampshire, most pet trusts will be drafted as inter vivos trusts, so as to avoid continuing probate court oversight that will occur with a testamentary trust.

  • Nominate the trust enforcer. Of utmost importance in a carefully drafted pet trust is the nomination of the trust enforcer. This enforcer will stand in the shoes of a “qualified beneficiary” for purposes of reporting and disclosure required under the UTC. Attorneys who usually draft trusts waiving all reporting and disclosure obligations (other than those required under the UTC) may want reconsider that position in the context of pet trusts. It is in the client’s interest to make sure that the trust enforcer has full and complete information when looking out for the pet’s best interests. The trust enforcer may also be given the authority to remove or replace the trustee or the pet’s caregiver.
  • Consider nomination of a pet care panel. A “pet care panel” is basically an advisory board for the trust consisting of friends, relatives, the pets’ veterinarian, and any others with an interest in the pets’ well-being. The pet care panel can make decisions and recommendations relating to the standard of care for the animal(s), health care decisions (such as the decision whether and when to euthanize), the choice of caregivers, the caregiver’s salary and bonus, and other matters relating to the well-being of the beneficiary pets. Having a pet care panel can make the pet trust a living, flexible instrument and can relieve the trustee (which can be a financial institution) of the burden of making decisions for which it is not equipped. Like the trust enforcer, the pet care panel can be given the authority to remove or replace a trustee or caregiver. The pet care panel can also advise the trustee in the event of an unexpected event, such as the animal’s running away.
  • Consider nomination of a caregiver. With a well drafted pet trust, the caregiver need not be nominated in advance. The trustee, trust enforcer, and/or, if applicable, pet care panel may be given authority to appoint the caregiver when the need arises. Of more importance, as noted above, is that someone have the authority to remove or replace the caregiver. Obviously, the caregiver should not be someone who is also a remainder beneficiary under the trust, due to the inherent conflict of interest involved.
  • Consider payment to the caregiver. Payment to the caregiver in reimbursement of expenses can occur in one of two different manners. One method would be to distribute a fixed periodic amount (for example, $500 monthly) to the caregiver regardless of actual expenses. Using this method could result in the caregiver getting a windfall during a month when the pet incurred very little in actual expenses, or a shortfall during a month when the pet incurred extraordinary expenses. The second manner of making distributions would only reimburse the caregiver for actual expenses incurred for the benefit of the pet. The latter method, of course, requires more paperwork and documentation from the caregiver. The client should also decide whether to pay the caregiver a salary. Some pet trusts are drawn up with bonuses to be paid to the caregivers for the longevity of the pets in their care.
  • Consider the likelihood of an out-of-state move. Inadvertent estate planning consequences can result when a client executes estate planning documents, moves, and fails to update those documents. This is particularly true with respect to a settlor who has executed a pet trust document, given the lack of uniformity in state law. Clients should be advised that these trusts may be considered as honorary trusts or even held invalid should the trust not be recognized by an out-of-state court. Still, it is prudent to include a choice of law provision in the trust document stating that Maine law, specifically, is to apply to the interpretation of this trust. It might also be helpful to include a contingency provision describing what should happen in the event that the trust is deemed invalid.
  • Estimate the amount needed for the care of the pet or pets. It is important to accurately calculate the amount needed to fund the trust to properly care for the settlor’s pets, as the Maine Trust Code restricts the funding of the trust to only that amount required for its intended use. The amount needed to care for the pets can be quite large, as in the case of a family with seven or eight pets who wish them to reside in the family home for the duration of their lives with a hired caregiver. In that case, the trust must pay for the maintenance and taxes on the real property, upkeep of the animals, and a caretaker’s salary. In the case of one elderly cat to be placed in the caregiver’s own home, however, the amount needed to fund the trust might be minimal. For a larger trust, an investment plan can be drawn up, taking into account the expected lifespan of the pet and the tax consequences discussed herein.
  • Consider the standard of care. Critical in estimating the amount required to fund the trust is setting forth the standard of care that the settlor expects the trust to provide for the pets. Regardless whether the trust calls for a Pet Care Panel to make such decisions, the settlor/pet owner may be most comfortable setting forth his wishes as to the pet’s standard of care in writing. It is a good idea to have the client help prepare a “Pet Profile,” a document which outlines the pet’s care needs, medical history, and even personality quirks. Moreover, written guidance in the standard of care can give the court guidance in the event that somebody brings suit to challenge the amount set aside in trust for the care of the pets. Obviously, food, housing, grooming, and medical care are all appropriate care for pets. Purchasing an automobile to transport the pet is probably excessive.
  • Consider liability insurance for the trust. The decision should be made, based upon the personality and type of pets benefiting from the trust, whether the trust should be insured with respect to any damage, whether property damage or personal injury, attributable to the settlors’ pets.
  • Identify the pet animals clearly. Under the Maine Trust Code, the trust can last no longer than the lifespan of the animals alive during the settlor’s lifetime. To protect the animal’s interest, clear identification of the specific animal or animals benefited by the trust should be made; a microchip implanted in the animal is a very secure means of identification. Tattooing is another option.
  • Consider the remainder beneficiary. Consider that it may be a conflict of interest for the animal’s caretaker to be the remainder beneficiary of the trust. Also consider the possibility of a remainder beneficiary or heir of the settlor challenging the amount funding the trust as excessive. If that is a possibility, a “no contest” clause in the trust, limiting the amount that may be received by a beneficiary who challenges the trust, may serve at least as a disincentive to challenge the trust. As an alternative, a pet trust established with a charitable organization as remainder beneficiary may be less likely to be challenged.

5. Pet Trust Alternatives

If a pet trust isn’t right for your situation, there are options for providing for your pet. Your Last Will and Testament could provide for your pet through:

  • Conditional bequests. You may be able to give money to a specific person, with the condition that the money is to be used for your pet’s care. However, without a pet trust, enforcement of this bequest may be impossible.
  • Bequeathing (leaving) your pet to a specific person, along with money for pet care. Again, without a pet trust, enforcement of this bequest and any assurance that your pet will actually be taken care of may be impossible.

6Tax Issues

A person might be tempted to forgo the formality of a pet trust and simply bequeath money to a person with an informal understanding that it be used for the care of a pet.  At least for tax reasons, there may be some advantage to doing this and the planner should consider the implications of Subchapter J of the Internal Revenue Code.

7. Incapacity

In the case of incapacity, an agent acting under a durable power of attorney should be given some direction or instructions in the principal’s durable power of attorney document as to what to do with his or her animals.  Ideally, such a durable power would provide for the ability of the agent to make gifts, establish trusts, and perhaps may reference and incorporate by reference the pet trust directions set forth in a Will execution contemporaneously with the power.   Point is, not only do pet owners need to plan for the care of their pets in the event of their demise, they also have to consider what should be done if they suddenly lost the capacity to care for their pets.

Massachusetts Law

Massachusetts law also contains statutory provisions for pet trusts and is generally very similar to Maine’s provisions.  When the Uniform Trust Code was adopted in Massachusetts in 2012, the old law dealing with pet trust was repealed and replaced with the provisions found at Massachusetts General Laws, Chapter 203E, Section 408.

 

These materials are not intended to constitute legal advice and shall not be used to establish proof of the formation of an attorney-client relationship.  These materials are provided at no cost and may constitute a form of advertising.   These materials were prepared for general use. 

 

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