Buyer Beware or Buyer Protected?
Most of us have bought or sold at least one horse in our lives. Many of us have bought or sold several, so we think we know what we are doing and our legal rights and obligations. The fact is, most of us have no idea what the law covers in this area, but times they are a changing.
A horse is a consumer good. Sounds shocking doesn’t it? The horse I want to sell is just like a toaster or car or large appliance? Yes, it is, and why shouldn’t it be? Buyer is giving you money for something you think is worth enough money to be sold. You sell—they buy. You are the seller and they are the consumer of a “product” If you sell more then a few horses a year you are not only a seller, but also a “merchant” and that opens up a whole other can of worms. So, lets pretend old Dobbin isn’t a draft X hunt horse. Lets pretend Old Dobbin is a refrigerator.
When you see an ad in the paper for a gleaming, shiny new refrigerator shown full of perishable goods on the bottom and frozen good on the top, you assume at least three things: 1) it is a refrigerator in the common use of that word 2) it will keep foods cold to an expected degree and 3) there is a freezer that will keep foods frozen. You probably also expect it is airtight, made of metal, and actually works. In addition, you would be disappointed if you took it home and it had faulty wiring that shorted out and shocked you or caused a fire that burned your house down. I think we can all agree that we have at least these simple expectations for a consumer purchase of a refrigerator.
If these expectations for your new fridge are not met, you immediately desire to return the faulty fridge and expect a full refund. You paid full price and spent your hard-earned money, so why wouldn’t you expect a refrigerator that worked like it should and wasn’t damaged or dangerous? You call the appliance dealer and ask for your right to return your “non-conforming” goods. The person tells you to read the sales contract you signed where its states clearly that this item is being sold “as is” and tough luck, buyer beware, and the item worked just fine when they had it. End if story? Of course not!
The very next day most of us would be frantically googling our state Representatives, State Consumer Protection laws, and calling everyone we know to find out how to GET OUR RIGHTS! “They can’t do that,” we’d opine. They just said sign here and I did! Or worse, the contract didn’t say “as is”—it just said you bought and they sold it. Or there is no contract at all! Just a receipt showing you bought a fridge from dealer X. You are angry. Hurt. Your food is rotting away in your kitchen. Then you call someone like me---a lawyer.
What do I do? I use the laws of the State of South Carolina to protect your consumer rights. Those laws do exist and someone fought hard to get them passed. South Carolina has some of the toughest Consumer Protection laws in the Country. In the end, you would get a new, working refrigerator or the money to buy one and I would get paid more then the darn thing costs in the first place. You would never buy a product from that seller again and eventually the seller would clean up his act or go out of business.
Is that what we expect to happen when we buy or sell a horse? No, its not. The game in horse sales seems to be played a little differently. You see an ad showing a nice Draft X jumping a 2.6” log on an open hillside with a child riding it. The ad describes Dobbin as a “well trained, quiet, field hunting, dressage, and show horse prospect.” Further, he is advertised as “sound, 16.1 and good for a family mount or perfect for a child moving up from ponies or for 4-H.” What does that say to you? To me it implies a reasonably quiet, well-trained, somewhat experienced horse that has been ridden by a child and can do the lower levels of the described disciplines now, or with a little training, soon after I buy him. So do I just scribble out a check, send it to the sellers and expect this perfect beast to be delivered just like a refrigerator? NOOOoooo!
Now the game starts. The seller tries to tell you the horse is just what you’re searching for and you spend considerable time, money, and effort to try and discover what’s really wrong with the horse. You go to look at him. You show up early to make sure he hasn’t been worked down or drugged. You bring a trainer, your best friend and any extra sets of eyes you can round up to find the hidden faults with Dobbin. You come back several times and even fork out hundreds of dollars to see inside Dobbin’s skin in case the undisclosed faults are hiding in there. Dobbin looks good. You can’t find anything wrong with him. You buy him and take him home. You sign a simple sales contract that says “Seller sells Dobbin to Buyer for $X as is”.
Hurray! Your search for that perfect horse for your teenage daughter is over. Dobbin arrives at your farm. Oh happy days. On day 2 you go out to feed in the morning and Dobbin is laying on the ground. Five hours later your Vet determines Dobbin must go to surgery for a bad impaction colic. Off to the Vet school Dobbin goes, your teenage daughter crying the whole way. You arrive at the clinic and three employees all run up and hug your new horse cooing “Dobbin! We haven’t seen you in months! Is him colicking again. Mmmm poor Dobsie” Yes, to put it mildly, Dobbin has a history of colic that you could not discover during all your pre-purchase antics. Did seller know this? Unless Dobbin had has own credit card and access to a truck and trailer, its pretty unlikely he gained his own nickname and the clinic without Seller noticing. Now what?
If you are like most of us you call seller up and complain she sold you a colicky horse and you want to give him back. “Sorry”, Seller says, buyer beware and you bought him ‘”as is”. “He’s fine,” she continues, “Those surgeries only keep him down for 4-5 months and he’ll be ready to ride by Opening Day. He always is” And what do you do? You whine, you yell, you bad mouth Seller all over town, you post “What would you do” messages all over the internet—but you never, ever consider calling a lawyer because, well, Dobbin is a Horse,—not a refrigerator!
And so you keep Dobbin, and the $4K Vet bills, and the monthly expenses for board and shoeing and special feed for Dobbins special tummy and you never, never find out if you had any legal rights. I’m here to tell you that you do. Seller has a legal duty to provide a product that does what it was expected to do. Seller has a legal duty to sell goods that last as long as they should last. Seller even has a legal duty to disclose known defects and if seller does not want to play by the rules, then Seller’s contract should be at least one full page long to disclaim all those implied warranties. The warranties are already there—the Seller must explicitly disclaim them, and lets face it, if someone handed you a full page of disclaimers, wouldn’t you pause long enough to read it and find out the meaning?
What did Seller promise Dobbin was fit and suitable to do? Well, from the picture you might have assumed he could stand up without falling back down in colicking pain. You would assume that a horse suitable for dressage, showing, hunting and riding was sound and healthy enough to do those things, maybe not go to the Olympics, but at least go to a schooling show or two. Dobbin was also advertised as being safe for a child, so there goes any behavioral aberrations like rearing, bucking, bolting, biting or spooking at every blade of grass. If Seller knew Dobbin was not up to these tasks, then the law will side with you. Proving what the Seller knew and when they knew it can be tricky, but in a clear cut case in a world that has google, its pretty hard to hide a horse’s history these days. Somebody out there knows Dobbin and is willing to share. Seller is also promising she actually owns Dobbin and has a right to sell him. You’d be surprised how many times this is not the case.
You intuitively know this when applied to a refrigerator, but until recently, it was hard for people to conceive that the same laws applied to horses. They do. Nobody is saying that if Newbie rider takes horse home, puts it behind barbed wire and rides it once a week Seller will be liable if the horse breaks down or gets injured, but Seller does have a duty to disclose all known defects and advertise honestly what the product they are selling can and can’t do. Nobody needs to put this in a contract—its already there by law when you buy the horse.
The time frame to assert your rights is limited. You must prove the horse came that way when you bought him, but an unseen infection, a long standing tendon injury, or an arthritic condition that can’t spring up over night or even over a few months is pretty unlikely to have happened after you bought the horse. If the horse jumped fine when sold and stopped a few months later, its not Seller’s problem, but if a horse has proved time and time again he will bolt at the sight of a jump, then selling that horse as a jumping prospect wont do. One must actually have some knowledge. Just because Dobbin broke every jump pole on your course (and even a few standards) doesn’t mean he is magically cured because Buyer somehow managed to pilot him around a course with no falls for the first time.
A sales contract that simply states “as is” is not a valid defense. The words are, as we lawyers call them, “terms of art” and must be written in a particular way and in a particular manner. Although 80% of your friends will tell you that ‘as is’ means you have no legal recourse, 80% of lawyers will tell you that’s not true. You have legal rights. Use them. Unlike refrigerators, even a free horse can cost thousands of dollars to keep. Nobody should have to pay hard earned money for a horse that isn’t, and never was suitable, just because they couldn’t find the hidden problems. The burden is on the seller, not the buyer!
So why doesn’t everyone know about these legal rights when applied to horse sales? I have no idea. I sure didn’t know before I went to law school and even many of my professors said the laws didn’t apply to animals. They do. But, because this misconception is so widespread, several states have started drafting and passing laws that specifically, obviously, and with big arrows pointing at the relevant sections, clearly outline the already existing laws and are written to cover exclusively the sales of horses. California, Kentucky and now Florida are considering or have already passed laws requiring full disclosure and other rules that must be followed in the sales of some horses—mostly expensive Thoroughbreds from high dollar auctions, but in South Carolina these laws already exist in our consumer protection legislation and in our Uniform Commercial code that applies to merchants. The law doesn’t care whether it’s the sale of a large appliance or a large animal like a horse. With the changing attitudes toward the buying and selling of horses effecting sales from coast to coast, now is the time to make sure you understand your rights. As either buyer or seller, and get professional contracts drawn up that clearly state what you expect the horse to be able to do, not do, and what remedies you expect for a breach such as paying your legal expenses and paying for the upkeep of a now useless, poor old Dobbin.
Monday, November 24, 2008
Contracts: Leases: Post now, edit later.
When do we need contracts? When you do anything that requires some performance by another it’s a good time to have a contract in writing. Situations where I see the most problems are contracts for selling a horse on consignment, any kind of lease arrangement, boarding contracts and partnerships, joint ventures or business arrangements. Some of these contracts can be done fairly well yourself if you do the right research, others should never be attempted without qualified legal help.
I make my living as a lawyer. I do not make my living giving out free advice, but times are changing and researching the law is not as hard as it used to be. I do not recommend just using someone else’s form contract or contract drawn up for them by their lawyer, but if you are willing to really put some time into the project you can draw up a fairly good contract yourself for some of the everyday things the average animal owner might need. They key is “willing to put in the time to research.” That might take several days or even a week, but it could save you a few hundred to even a few thousand dollars in legal fees.
Contracts from friends or posted on the internet can be a good place to start when drafting your own contract. They are not a good place to end, but the hardest part is knowing where to start. Having a good start right in front of you ready to be personalized and edited will make all the rest easier. Here are some of my helpful hints to DIY contracts.
Leases: If you are going to draw up a lease contact then do the research to understand what every term in that lease means. We are not talking about an entire legal education here, but look up each term on-line until you understand it and can clearly understand how it will affect your set of facts. You will not need to do this over and over again, you will just have to learn it really well once and then keep looking for new laws as you sign new leases. You should not sign anything you do not understand yourself.
Lease contracts are fairly standard in some ways and completely individual in others. After you have researched all the legal terms and their meanings that some person on a BB gave you, then do the extra research to see what kinds of problems people with leases have already experienced. That means searching for “lease gone wrong” threads instead of sample lease contracts threads. All contracts are good until something goes wrong. Learn what others wish they had put in their contracts as well as what others did put in there. In fact, spend more time learning how to avoid common mistakes or uncommon unforeseen occurrences.
Put everything in there you can think of that might possibly go wrong. You don’t have to go into great detail. You don’t have to cover yourself in the event a satellite breaks up in space and lands on your leased horse, but you should put something in there that covers all unplanned events whether its space debris or the death of the lessor. Or your death. Or the horse going lame halfway through the lease or the barn going under while you are contractually obligated to board there.
Who can ride the horse, who pays what bills under all circumstances, who makes major medical decisions, who pays what when and how much and how is the lease continued or ended should be in there. How the horse shall be used and what happens if its comes back in worse shape then when it left should be in there. Clearly stating who the legal owner is should be in there, but for some reason this gets left out so when leases end horses do not come back without a fight. Some leases might be even more specific like no 6 inch chain shanked bits or no sweet feed or barefoot trimmers or shoes on a barefoot trimmed horses. If it matters to you then put it in there.
In most cases, as I said before, a judge will assume if you took the time to write up a lease you put all the agreement in there. If you write up a lease and then run down the driveway shouting out additional instructions to the lessee, none of that will count as part of the lease. Nor will e-mails or statements in front of witnesses or a signed affidavit from the chief justice if the supreme court. Unless a lease term is so ambiguous as to be incomprehensible to a judge, no other evidence is allowed.
So now you have a lease agreement that 5 pages long! Yeah, so what? Shouldn’t a lease agreement for a horse be as long as agreement for an apartment or a car? Many leased horses are worth more then a leased car and board is more expensive then rent. If something goes horribly wrong with a car lease it does not haunt you for years that your car died or was ruined. It is your horse—its more then just a financial investment. Your lease may end up filling several pages, but its not like you can order new parts for a horse that comes back with a bad leg. You have to protect your investment and your horse. If he comes back broken you still have to pay board for the next 10 years. You should not feel guilty for making someone read and sign 3 pages of terms. Put it in there and if the person wont sign then they wont sign. Move on to someone who takes the lease as seriously as they do the terms and conditions of any other legal contact they enter into.
You should expect that the other party may want to negotiate their own terms too. Maybe they do not want to pay for mortality insurance and you both agree to change that term. Thats OK. Its Ok to have a two way conversation about your contracts. Its not OK to leave out terms because someone is too lazy to read 3 pages or every other contract you have seen for horses was shorter. The terms and conditions for me to use google blog are longer then any lease contract I have ever drafted. I did not hesitate the click “OK. I accept” because it was long. I just knew I had no choice and agreed. You and your other party do have choices in what your final agreement is, but the talking it out makes sure both sides have thought long and hard about signing a contract that may cost tens of thousands of dollars to fight out in court otherwise.
Here is a good test to know if you are willing to do the work to draft a good DIY lease. If you have not made it this far in the blog you are not a good candidate for taking the time and effort to make you lease worthwhile. And you quit so soon you do not even know it.
If you are still reading, and it takes me longer to write this stuff then for you to read it, the final thing you should do before using a pre-made lease that you have now fit to your facts is to look up a few examples of court cases in your state where a lease for a horse went bad. That will tell you where the law in your state varies from the law in the state you chain letter lease originated in. Case law is free and is found by googling or checking your state’s court websites. You look for the most recent case and see how a judge looked at similar facts. You do not have to be a lawyer to see how things played out and just what I have posted about contracts should get you enough basic understanding to figure out who won and who lost and why. The lawyers must know enough to come up with those legal arguments, you just need to read enough to understand if your state has any strange rules that were inconceivable to whomever wrote that original contract. If you can't find a case with a horse read one about any other non-real estate lease.
So, the 4 point plan is :
1) Get something to start with and know what you want.
2) Read it and research until you actually understand all the legal terms
3) Make it reflect the bargain you want in your lease
4) Check your states laws and cases to make sure the contract is valid in your state
I know it sounds like a lot of work. It is, but you wont have to redo it over and over again. You will change the terms for new leases or might add or subtract from past learning experiences, but its something you can build on and use over and over again for the one time effort of making it right. If its worth your money hire a lawyer, but this is one of those situations where the lawyer must understand about horses because cars do not learn bad habits on their own and apartments do not tend to disappear into the night only to reappear under a different name 4 years later.
I make my living as a lawyer. I do not make my living giving out free advice, but times are changing and researching the law is not as hard as it used to be. I do not recommend just using someone else’s form contract or contract drawn up for them by their lawyer, but if you are willing to really put some time into the project you can draw up a fairly good contract yourself for some of the everyday things the average animal owner might need. They key is “willing to put in the time to research.” That might take several days or even a week, but it could save you a few hundred to even a few thousand dollars in legal fees.
Contracts from friends or posted on the internet can be a good place to start when drafting your own contract. They are not a good place to end, but the hardest part is knowing where to start. Having a good start right in front of you ready to be personalized and edited will make all the rest easier. Here are some of my helpful hints to DIY contracts.
Leases: If you are going to draw up a lease contact then do the research to understand what every term in that lease means. We are not talking about an entire legal education here, but look up each term on-line until you understand it and can clearly understand how it will affect your set of facts. You will not need to do this over and over again, you will just have to learn it really well once and then keep looking for new laws as you sign new leases. You should not sign anything you do not understand yourself.
Lease contracts are fairly standard in some ways and completely individual in others. After you have researched all the legal terms and their meanings that some person on a BB gave you, then do the extra research to see what kinds of problems people with leases have already experienced. That means searching for “lease gone wrong” threads instead of sample lease contracts threads. All contracts are good until something goes wrong. Learn what others wish they had put in their contracts as well as what others did put in there. In fact, spend more time learning how to avoid common mistakes or uncommon unforeseen occurrences.
Put everything in there you can think of that might possibly go wrong. You don’t have to go into great detail. You don’t have to cover yourself in the event a satellite breaks up in space and lands on your leased horse, but you should put something in there that covers all unplanned events whether its space debris or the death of the lessor. Or your death. Or the horse going lame halfway through the lease or the barn going under while you are contractually obligated to board there.
Who can ride the horse, who pays what bills under all circumstances, who makes major medical decisions, who pays what when and how much and how is the lease continued or ended should be in there. How the horse shall be used and what happens if its comes back in worse shape then when it left should be in there. Clearly stating who the legal owner is should be in there, but for some reason this gets left out so when leases end horses do not come back without a fight. Some leases might be even more specific like no 6 inch chain shanked bits or no sweet feed or barefoot trimmers or shoes on a barefoot trimmed horses. If it matters to you then put it in there.
In most cases, as I said before, a judge will assume if you took the time to write up a lease you put all the agreement in there. If you write up a lease and then run down the driveway shouting out additional instructions to the lessee, none of that will count as part of the lease. Nor will e-mails or statements in front of witnesses or a signed affidavit from the chief justice if the supreme court. Unless a lease term is so ambiguous as to be incomprehensible to a judge, no other evidence is allowed.
So now you have a lease agreement that 5 pages long! Yeah, so what? Shouldn’t a lease agreement for a horse be as long as agreement for an apartment or a car? Many leased horses are worth more then a leased car and board is more expensive then rent. If something goes horribly wrong with a car lease it does not haunt you for years that your car died or was ruined. It is your horse—its more then just a financial investment. Your lease may end up filling several pages, but its not like you can order new parts for a horse that comes back with a bad leg. You have to protect your investment and your horse. If he comes back broken you still have to pay board for the next 10 years. You should not feel guilty for making someone read and sign 3 pages of terms. Put it in there and if the person wont sign then they wont sign. Move on to someone who takes the lease as seriously as they do the terms and conditions of any other legal contact they enter into.
You should expect that the other party may want to negotiate their own terms too. Maybe they do not want to pay for mortality insurance and you both agree to change that term. Thats OK. Its Ok to have a two way conversation about your contracts. Its not OK to leave out terms because someone is too lazy to read 3 pages or every other contract you have seen for horses was shorter. The terms and conditions for me to use google blog are longer then any lease contract I have ever drafted. I did not hesitate the click “OK. I accept” because it was long. I just knew I had no choice and agreed. You and your other party do have choices in what your final agreement is, but the talking it out makes sure both sides have thought long and hard about signing a contract that may cost tens of thousands of dollars to fight out in court otherwise.
Here is a good test to know if you are willing to do the work to draft a good DIY lease. If you have not made it this far in the blog you are not a good candidate for taking the time and effort to make you lease worthwhile. And you quit so soon you do not even know it.
If you are still reading, and it takes me longer to write this stuff then for you to read it, the final thing you should do before using a pre-made lease that you have now fit to your facts is to look up a few examples of court cases in your state where a lease for a horse went bad. That will tell you where the law in your state varies from the law in the state you chain letter lease originated in. Case law is free and is found by googling or checking your state’s court websites. You look for the most recent case and see how a judge looked at similar facts. You do not have to be a lawyer to see how things played out and just what I have posted about contracts should get you enough basic understanding to figure out who won and who lost and why. The lawyers must know enough to come up with those legal arguments, you just need to read enough to understand if your state has any strange rules that were inconceivable to whomever wrote that original contract. If you can't find a case with a horse read one about any other non-real estate lease.
So, the 4 point plan is :
1) Get something to start with and know what you want.
2) Read it and research until you actually understand all the legal terms
3) Make it reflect the bargain you want in your lease
4) Check your states laws and cases to make sure the contract is valid in your state
I know it sounds like a lot of work. It is, but you wont have to redo it over and over again. You will change the terms for new leases or might add or subtract from past learning experiences, but its something you can build on and use over and over again for the one time effort of making it right. If its worth your money hire a lawyer, but this is one of those situations where the lawyer must understand about horses because cars do not learn bad habits on their own and apartments do not tend to disappear into the night only to reappear under a different name 4 years later.
Friday, November 21, 2008
More Contracts Confusion
There are certain situations in which a contract must be in writing. These situations fall under The Statute of Frauds and how this effects you in court depends on your state. It’s a way for a defendant to get off of his contractual duties by raising the defense there is no contract because the deal did not comply with the statute of frauds.
If you swear on a bible on a live TV show that you will pay $1,000 for that puppy in the window and the seller accepts your offer, there is still not an enforceable contract when there is no written agreement. Right now the SOF kicks in at $500. It the future states may adopt the new higher amount of $5,000 proposed by the people who sit around and propose these things, but the chances are in your state its $500.
There are a few other situations that an animal person might run into that fall under the SOF, but we will leave out the ones that aren’t animal related. Thee sale of real estate must always be written. Anything that will take longer than a year must always be written. Other things that are more then $500 may fall into an exception, but if you have reached he point where you need to use a SOF defense you already need a lawyer so my purpose is to just tell you what must be in writing and let you use that pen and paper for 1 minute to avoid having to play the exception game in court.
Remember, we are talking about contracts here and not bills of sale or receipts, but something that falls under a promise for a promise for valuable consideration which usually means some future act. When you put down a deposit on a horse that’s a contract for a purchase. When you lease out or lend out or re-home a horse that’s a contract. If you contract for a years worth of hay or a months worth of training it’s a contract.
The SOF says you need a signature, a price and a description. So if buyer gives you a deposit check and puts 10% of sales price for horse in the memo line you have a contract. If buyer hen tries to deny a contract under the SOF, you have a signed writing against the party to be charges, a price and a description. Can you see why its called the SOF? Its hard for buyer to deny he meant to buy horse is handed you that check. It prevents a fraud on the court. It prevents people from saying Nuh uh! I have never promised to buy that horse! It does not protect you from fraud, it protects judges from lying lairs denying the contract in court. Its one more reason to understand verbal agreements are binding or there would be no SOF and its also another reason to get it in writing anyway!
If you sell a horse for more then $500 (or tack or hay) and you do this more then a few times you may be considered a merchant. Merchants fall under the Uniform Commercial Code and specifically article 2. When you give that poorly written bill of sale that’s says Buyer buys Rusty as is for $500 you just formed a contract with the buyer that satisfies the statute of frauds if you sign it and picked up a whole lot of other responsibilities along the way.
The SOF can be overcome by partial performance. If you contracted to buy hay for a year and you get the first few deliveries and make the first few payments, then a judge can see there was an actual contract in place. If you call before your first expected delivery and ask for your hay and seller says what hay? He can argue the SOF in court. No writing, no contract, no hay.
And why am I spending so much time educating non-lawyers about contracts? Why not just give you a cut and pasted response I ripped off of Wikipedia? Because, if its really a huge deal you will be hiring a lawyer anyway, but if you have a small claim (small to the courts but not to you!) you may just go to small claims court and try and do it yourself. The problem is you have to ask the judge for the proper laws to be applied and the proper remedies to be given. If you don’t ask for the right thing you lose, even if you really did have a good claim in some other from of law.
If you understand what a contract is and isn’t you will not go to court asking for relief on a breach of contract claim only to be dismissed or thrown out because there is no contract. You would need to use some other law, but the judge can only do what you ask him to in your complaint. He can’t change your pleadings to match our actual claim. You may have a tort claim or a consumer protection claim or a fraud claim and you are in there babbling on about contracts. The judge can’t help you. It’s just like a kids game and you must use the magic words. Your statute of limitations is usually much longer under a contract claim then other claims too.
Many of the problems I see most are verbal agreements that fall under the SOF. Luckily, many lawyers slept through that part of contracts class, but I wasn’t one of them. I went to law school with over 30 years experience in the animal industry and I applied everything I herd in class to how that would matter in an animal situation. And since everyone else was sleeping off their hangovers I asked question after question for every conceivable snafu I could think of in the many common practices among the daily dealing of the average animal owner.
Take a few minute and think of some situations you have been in where knowing about contracts could have helped.
Get it in writing but make sure that writing is enough!
If you swear on a bible on a live TV show that you will pay $1,000 for that puppy in the window and the seller accepts your offer, there is still not an enforceable contract when there is no written agreement. Right now the SOF kicks in at $500. It the future states may adopt the new higher amount of $5,000 proposed by the people who sit around and propose these things, but the chances are in your state its $500.
There are a few other situations that an animal person might run into that fall under the SOF, but we will leave out the ones that aren’t animal related. Thee sale of real estate must always be written. Anything that will take longer than a year must always be written. Other things that are more then $500 may fall into an exception, but if you have reached he point where you need to use a SOF defense you already need a lawyer so my purpose is to just tell you what must be in writing and let you use that pen and paper for 1 minute to avoid having to play the exception game in court.
Remember, we are talking about contracts here and not bills of sale or receipts, but something that falls under a promise for a promise for valuable consideration which usually means some future act. When you put down a deposit on a horse that’s a contract for a purchase. When you lease out or lend out or re-home a horse that’s a contract. If you contract for a years worth of hay or a months worth of training it’s a contract.
The SOF says you need a signature, a price and a description. So if buyer gives you a deposit check and puts 10% of sales price for horse in the memo line you have a contract. If buyer hen tries to deny a contract under the SOF, you have a signed writing against the party to be charges, a price and a description. Can you see why its called the SOF? Its hard for buyer to deny he meant to buy horse is handed you that check. It prevents a fraud on the court. It prevents people from saying Nuh uh! I have never promised to buy that horse! It does not protect you from fraud, it protects judges from lying lairs denying the contract in court. Its one more reason to understand verbal agreements are binding or there would be no SOF and its also another reason to get it in writing anyway!
If you sell a horse for more then $500 (or tack or hay) and you do this more then a few times you may be considered a merchant. Merchants fall under the Uniform Commercial Code and specifically article 2. When you give that poorly written bill of sale that’s says Buyer buys Rusty as is for $500 you just formed a contract with the buyer that satisfies the statute of frauds if you sign it and picked up a whole lot of other responsibilities along the way.
The SOF can be overcome by partial performance. If you contracted to buy hay for a year and you get the first few deliveries and make the first few payments, then a judge can see there was an actual contract in place. If you call before your first expected delivery and ask for your hay and seller says what hay? He can argue the SOF in court. No writing, no contract, no hay.
And why am I spending so much time educating non-lawyers about contracts? Why not just give you a cut and pasted response I ripped off of Wikipedia? Because, if its really a huge deal you will be hiring a lawyer anyway, but if you have a small claim (small to the courts but not to you!) you may just go to small claims court and try and do it yourself. The problem is you have to ask the judge for the proper laws to be applied and the proper remedies to be given. If you don’t ask for the right thing you lose, even if you really did have a good claim in some other from of law.
If you understand what a contract is and isn’t you will not go to court asking for relief on a breach of contract claim only to be dismissed or thrown out because there is no contract. You would need to use some other law, but the judge can only do what you ask him to in your complaint. He can’t change your pleadings to match our actual claim. You may have a tort claim or a consumer protection claim or a fraud claim and you are in there babbling on about contracts. The judge can’t help you. It’s just like a kids game and you must use the magic words. Your statute of limitations is usually much longer under a contract claim then other claims too.
Many of the problems I see most are verbal agreements that fall under the SOF. Luckily, many lawyers slept through that part of contracts class, but I wasn’t one of them. I went to law school with over 30 years experience in the animal industry and I applied everything I herd in class to how that would matter in an animal situation. And since everyone else was sleeping off their hangovers I asked question after question for every conceivable snafu I could think of in the many common practices among the daily dealing of the average animal owner.
Take a few minute and think of some situations you have been in where knowing about contracts could have helped.
Get it in writing but make sure that writing is enough!
Wednesday, November 19, 2008
When a Contract isn't a Contract.
How do you know when you have or need a contract? Let’s repeat what a contract is. A contract is a promise for a promise. In order to have your contract enforced in a court of law you need one more element--Valuable consideration. That’s promise to do something, not do something, give money or other goods, or some act that lets a judge know it was meant to be contractual relationship and not a sale or a gift.
What does that actually mean and why does it matter? Because sometimes people think they have a contract when they don’t and pay lawyers to pursue or defend claims they have no hope of winning. Knowing the elements of a contract can help you know if you need more in your documents. You never need less, so we wont go there:>
Lets do a hypo: Susie has an older pony she wants to place in a good home. Danny says he would like the pony and promises Susie he will give it back if he ever changes his mind. Susie agrees and gives Danny the pony. Danny decides he no longer likes pony and sells it to Cathy. Can Susie go after Danny on a contract claim? It depends.
Susie made no promise to Danny. She gave him a pony. The pony is valuable consideration and Danny made a promise to Susie, but what did Susie promise Danny? Will a judge know what to do if Susie goes to court? She gave Danny a pony and he offered to give it back if he no longer wanted it, but Susie did not condition her release of the pony based on Danny’s promise. She did not say “I promise you this pony if you promise to give it back. There may or may not be a contract and there is no written evidence for a judge to decide who meant what and why Susie gave Danny the pony. In general, people do not give valuable things away if they are not meant as gifts.
So off they go to court paying lawyers to convince the judge each side is right. Danny says he never made that promise and he pony was a gift. He argues he only took the pony because of its value for resale and if she meant to keep ownership, Susie should have paid board in the amount of $500 a month just like all the other pony owners in his barn do. He asks the judge why a reasonable business person would take on an expense if he could not later profit from it?
Susie argues that it was not a gift and that they had a contract in which for the valuable consideration of the use of a well trained pony Danny promised to pay all expenses and give the pony back if he no longer wanted it. She claims the use of the pony was the bargain he desired and not the eventual sales price he might one day realize. On order for Susie to be in the same position she would be if the contract had been carried out, she demands the pony back. Except Danny does not have the pony. Cathy does. What should the judge do?
This is a pretty common place scenario that happens all the time, but legally, it’s a nightmare. The poor judge knows nothing about horses or ponies, he has to apply the laws of gifts, contracts, property and equity to decide who gets what and how and why and he must base his decision pretty much on who he believes more. It all comes down to credibility and what a reasonable person might have done. That’s where it all breaks down because “reasonable” and “what horse folks do” is not always a train that runs on the same tracks.
It is not often that reasonable people give things away or sell them and still want them back. If you have a car and you no longer want it you sell it or give it away. If you do not sell it or give it away you have just loaned it to someone and judges have no problem figuring that out. A loaned car must be returned or paid for. If you borrow a car you pay for parking, the gas it used or the tires it needed. If it gets impounded and racks up a huge bill the true owner would not be expected to pay for that. The true owner just wants the car back or the money for the car. Open and shut case.
But cars have titles. The true owner of a car is the person who holds title in their name. In most states horses do not have titles. The true owner is most likely the person in possession of the animal and paying for its upkeep. Unless, of course, you have a real written contract to bring to court. And a good contract at that.
Lets change the facts just a little. Susie gives Danny the pony and makes him sign a piece of paper that says “I, Danny, promise to give pony back to Susie if I no longer want it.” That’s better, but its still not a contract and it still leads to Danny demanding board for said pony when Susie demands pony back. Nobody rides for free, right? Except Danny.
Now go back to the elements of the contract and try once again. “I Susie, for the valuable consideration of the use of this well trained pony, let Danny have pony until he no longer wants it at which time he promises to give it back to me” That’s a contract. That tells the judge the condition upon which the promises were made and what value Danny gets out of his promise to give it back.
Do a few words really make that much difference in a contract case? You bet they do. My case books are not 1 foot thick for no reason. The best way to get out of a contractual obligation is to argue that no contract exists! If contracts have certain elements then they must be in there or it’s up to a judge to guess who was thinking what. This generally makes their lives harder as a simple well written contract at the time the deal was made would have kept this case off her calendar and been settled quickly.
And lets go one step further, you already have a pen and that piece of paper, why not add who is responsible for all expenses and what remedies will be agreed upon if the other party breaches? Sure, a well written contract might scare off a few potential people, but isn’t that a good thing if they plan on not keeping their word? And yes, it may cost a few hundred bucks if you have to pay a lawyer to write contract, but you know how much we will charge you to go to court over that free pony??? No, you don’t want to know.
What does that actually mean and why does it matter? Because sometimes people think they have a contract when they don’t and pay lawyers to pursue or defend claims they have no hope of winning. Knowing the elements of a contract can help you know if you need more in your documents. You never need less, so we wont go there:>
Lets do a hypo: Susie has an older pony she wants to place in a good home. Danny says he would like the pony and promises Susie he will give it back if he ever changes his mind. Susie agrees and gives Danny the pony. Danny decides he no longer likes pony and sells it to Cathy. Can Susie go after Danny on a contract claim? It depends.
Susie made no promise to Danny. She gave him a pony. The pony is valuable consideration and Danny made a promise to Susie, but what did Susie promise Danny? Will a judge know what to do if Susie goes to court? She gave Danny a pony and he offered to give it back if he no longer wanted it, but Susie did not condition her release of the pony based on Danny’s promise. She did not say “I promise you this pony if you promise to give it back. There may or may not be a contract and there is no written evidence for a judge to decide who meant what and why Susie gave Danny the pony. In general, people do not give valuable things away if they are not meant as gifts.
So off they go to court paying lawyers to convince the judge each side is right. Danny says he never made that promise and he pony was a gift. He argues he only took the pony because of its value for resale and if she meant to keep ownership, Susie should have paid board in the amount of $500 a month just like all the other pony owners in his barn do. He asks the judge why a reasonable business person would take on an expense if he could not later profit from it?
Susie argues that it was not a gift and that they had a contract in which for the valuable consideration of the use of a well trained pony Danny promised to pay all expenses and give the pony back if he no longer wanted it. She claims the use of the pony was the bargain he desired and not the eventual sales price he might one day realize. On order for Susie to be in the same position she would be if the contract had been carried out, she demands the pony back. Except Danny does not have the pony. Cathy does. What should the judge do?
This is a pretty common place scenario that happens all the time, but legally, it’s a nightmare. The poor judge knows nothing about horses or ponies, he has to apply the laws of gifts, contracts, property and equity to decide who gets what and how and why and he must base his decision pretty much on who he believes more. It all comes down to credibility and what a reasonable person might have done. That’s where it all breaks down because “reasonable” and “what horse folks do” is not always a train that runs on the same tracks.
It is not often that reasonable people give things away or sell them and still want them back. If you have a car and you no longer want it you sell it or give it away. If you do not sell it or give it away you have just loaned it to someone and judges have no problem figuring that out. A loaned car must be returned or paid for. If you borrow a car you pay for parking, the gas it used or the tires it needed. If it gets impounded and racks up a huge bill the true owner would not be expected to pay for that. The true owner just wants the car back or the money for the car. Open and shut case.
But cars have titles. The true owner of a car is the person who holds title in their name. In most states horses do not have titles. The true owner is most likely the person in possession of the animal and paying for its upkeep. Unless, of course, you have a real written contract to bring to court. And a good contract at that.
Lets change the facts just a little. Susie gives Danny the pony and makes him sign a piece of paper that says “I, Danny, promise to give pony back to Susie if I no longer want it.” That’s better, but its still not a contract and it still leads to Danny demanding board for said pony when Susie demands pony back. Nobody rides for free, right? Except Danny.
Now go back to the elements of the contract and try once again. “I Susie, for the valuable consideration of the use of this well trained pony, let Danny have pony until he no longer wants it at which time he promises to give it back to me” That’s a contract. That tells the judge the condition upon which the promises were made and what value Danny gets out of his promise to give it back.
Do a few words really make that much difference in a contract case? You bet they do. My case books are not 1 foot thick for no reason. The best way to get out of a contractual obligation is to argue that no contract exists! If contracts have certain elements then they must be in there or it’s up to a judge to guess who was thinking what. This generally makes their lives harder as a simple well written contract at the time the deal was made would have kept this case off her calendar and been settled quickly.
And lets go one step further, you already have a pen and that piece of paper, why not add who is responsible for all expenses and what remedies will be agreed upon if the other party breaches? Sure, a well written contract might scare off a few potential people, but isn’t that a good thing if they plan on not keeping their word? And yes, it may cost a few hundred bucks if you have to pay a lawyer to write contract, but you know how much we will charge you to go to court over that free pony??? No, you don’t want to know.
Monday, November 17, 2008
Contracts Until your Head Explodes
Contracts. I hate contracts. You hate contracts. Everybody hates contracts. But you just have to have them. You even have to read them. You are bound by them and protected or screwed by them, so lets learn little about the whats, whys, hows and whens of contracts. Sigh.
A contract is a promise for a promise. If it’s a good contract those promises will be enforceable by law in your state. Contracts have certain terms and formalities that must be followed. They can be written or oral except in a few circumstances and they should contain the entire agreement between the parties including what happens if the contract fails.
An oral contract is still a contract. It is not true that they are useless. It is true they are harder to prove. However, if part of the contract has been carried out a judge will likely find that a contract existed because people generally don’t run around doing things for free and if the other party also started completion of the contract thats more proof it’s a contractual arrangement and not an ABC reality show where a millionaire just gives you money for being really really worthy.
A written contract is better then an oral one, but a badly written contract is worse then an oral one where a judge may fill in the terms. There is rarely a combination of a written and oral contract. If you mean for it to be part of the exchange of promises then put it in the contract. The judge will assume since you bothered to write it down and sign it that’s the deal you meant. In only very narrow circumstances will any oral provision be enforced in the presence of a written agreement.
Writing contracts is not for the amateur. Remember, it’s binding, so what you leave out can come back and bite you in the butt as much as what you put in. Having a really nice contract for the wrong state can make your life miserable too. Not all states have the same laws for contracts. So not only do I not recommend writing your own contracts, I also discourage buying generic contracts on-line that are not tailored to your states laws. If you buy one made for your state that’s great, but the person who wrote it and charged for it needs to be licensed to practice in your state or they just broke the law. That doesn’t mean a form book isn’t going to help you if they hired attorneys from your state to write the contracts, its just means if the contracts are no good you can’t sue a book for malpractice and you can’t sue an attorney illegal practicing across state lines either.
I have only studied contract law for 2 different states, however, the differences were dramatic. If I tried to use contract 1 in state 2 it would not protect my client. Little things like font size and specific wording can make or break a contract in court. Can you look up the laws yourself and learn how to write a contract for your state? Sure, but you can probably pay a lawyer to write you a contract for much less effort. Here’s the thing. We are not writing contracts to make you and the other party stick to the deal, we are writing contracts for the other parties lawyers. When I write a contract I am only thinking about what another lawyer will do to break it in court. That means I have to know as much as another lawyer and hopefully just a little bit more. Can you still learn all that on your own? Sure, but it’s boring as hell and involves lots of Latin. Yuck.
Most people want short simple contracts. I can’t blame them, but if you look at the contracts of businesses that have been around for awhile, you realize there is a correlation between length and time. The longer they have been around the more things they learned the hard way and the more stuff they add to their contracts. I never see them get any shorter, I just see them have more clauses for things they never foresaw happening. Clients may be turned off by lengthy contracts, but clients also happily click that button agreeing to page after page of terms and conditions on websites every day and never think twice about it. It should be OK to act like a business if you are going to enter into a business transaction. It might be better to scare off a few clients now then have that many sue you later. Which, by the way, is my next personalized license plate: SUUL8TR
Lawsuits involving contracts are not like when you sue someone hoping to win big. In contract law the goal is to put you where you would be if the contract was followed, not to punish or make you where you would be if there had been no contract. What this means to you, as a client, is that lawyers do not take contract cases on contingency hoping a jury awards a few million. That means you have to pay. Quite often it will cost more to litigate then you have already lost. It is, however, much cheaper to pay for a good contract to start with and then at least the lawyer is on the hook if its really a bad contract. The better the contract the easier it is to win before you pay for all that litigation. In fact, with a really good contract you can skip the litigation and win based on the fact opposing counsel can’t find a way to beat it and tells her client to just pay up. I have agreed to contracts in the last month which leave me no rights at all no matter what the company does. I can still sue and maybe even win, but it will cost me more then I will ever lose just because the breach of contract. I simply wont sue.
Over the next few posts we’ll talk about some specific contracts that come up often with animals like boarding contracts, breeding contracts, leasing contracts and sales contracts. Doesn’t that sound fun????
A contract is a promise for a promise. If it’s a good contract those promises will be enforceable by law in your state. Contracts have certain terms and formalities that must be followed. They can be written or oral except in a few circumstances and they should contain the entire agreement between the parties including what happens if the contract fails.
An oral contract is still a contract. It is not true that they are useless. It is true they are harder to prove. However, if part of the contract has been carried out a judge will likely find that a contract existed because people generally don’t run around doing things for free and if the other party also started completion of the contract thats more proof it’s a contractual arrangement and not an ABC reality show where a millionaire just gives you money for being really really worthy.
A written contract is better then an oral one, but a badly written contract is worse then an oral one where a judge may fill in the terms. There is rarely a combination of a written and oral contract. If you mean for it to be part of the exchange of promises then put it in the contract. The judge will assume since you bothered to write it down and sign it that’s the deal you meant. In only very narrow circumstances will any oral provision be enforced in the presence of a written agreement.
Writing contracts is not for the amateur. Remember, it’s binding, so what you leave out can come back and bite you in the butt as much as what you put in. Having a really nice contract for the wrong state can make your life miserable too. Not all states have the same laws for contracts. So not only do I not recommend writing your own contracts, I also discourage buying generic contracts on-line that are not tailored to your states laws. If you buy one made for your state that’s great, but the person who wrote it and charged for it needs to be licensed to practice in your state or they just broke the law. That doesn’t mean a form book isn’t going to help you if they hired attorneys from your state to write the contracts, its just means if the contracts are no good you can’t sue a book for malpractice and you can’t sue an attorney illegal practicing across state lines either.
I have only studied contract law for 2 different states, however, the differences were dramatic. If I tried to use contract 1 in state 2 it would not protect my client. Little things like font size and specific wording can make or break a contract in court. Can you look up the laws yourself and learn how to write a contract for your state? Sure, but you can probably pay a lawyer to write you a contract for much less effort. Here’s the thing. We are not writing contracts to make you and the other party stick to the deal, we are writing contracts for the other parties lawyers. When I write a contract I am only thinking about what another lawyer will do to break it in court. That means I have to know as much as another lawyer and hopefully just a little bit more. Can you still learn all that on your own? Sure, but it’s boring as hell and involves lots of Latin. Yuck.
Most people want short simple contracts. I can’t blame them, but if you look at the contracts of businesses that have been around for awhile, you realize there is a correlation between length and time. The longer they have been around the more things they learned the hard way and the more stuff they add to their contracts. I never see them get any shorter, I just see them have more clauses for things they never foresaw happening. Clients may be turned off by lengthy contracts, but clients also happily click that button agreeing to page after page of terms and conditions on websites every day and never think twice about it. It should be OK to act like a business if you are going to enter into a business transaction. It might be better to scare off a few clients now then have that many sue you later. Which, by the way, is my next personalized license plate: SUUL8TR
Lawsuits involving contracts are not like when you sue someone hoping to win big. In contract law the goal is to put you where you would be if the contract was followed, not to punish or make you where you would be if there had been no contract. What this means to you, as a client, is that lawyers do not take contract cases on contingency hoping a jury awards a few million. That means you have to pay. Quite often it will cost more to litigate then you have already lost. It is, however, much cheaper to pay for a good contract to start with and then at least the lawyer is on the hook if its really a bad contract. The better the contract the easier it is to win before you pay for all that litigation. In fact, with a really good contract you can skip the litigation and win based on the fact opposing counsel can’t find a way to beat it and tells her client to just pay up. I have agreed to contracts in the last month which leave me no rights at all no matter what the company does. I can still sue and maybe even win, but it will cost me more then I will ever lose just because the breach of contract. I simply wont sue.
Over the next few posts we’ll talk about some specific contracts that come up often with animals like boarding contracts, breeding contracts, leasing contracts and sales contracts. Doesn’t that sound fun????
The Happy Ending
Ok, so now lets go Back to Cindy’s facts but plug in an honorary trust. Cindy has the 2 horses and the 4 dogs in case you don’t remember. She has a friend who has agreed to take care of her animals if she dies.
This time Cindy gets a trust written up appointing her friend as the trustee. She funds it with a life insurance policy that she pays for out of her $60K savings. She dies.
The animals immediately go into the care of the trustee who quickly gets the check form the insurance policy cashed and does everything Cindy asked for in her trust. For about a year. Then she meets Robert, a nice man from Nigeria who sweeps her off her feet and convinces her to marry him.
Little by little Robert convinces Sandy to spend less and less on the horses and more and more on him. One day the farrier comes by, his schedule has been cut down to every 4 months by this point, as sees the horses are very thin. He speaks to Sandy about this but she says Robert is an expert and says thin is better.
The farrier tells Sally, Cindy’s sister, about his concerns. Sally tells a lawyer and the next thing you know the state’s attorneys office is enforcing the terms of the trust, removing Sandy as trustee and requiring she pay back all the money she spent on Roberts jewelry and not on the animals, along with a hefty fine. Robert disappears.
The court appoints Sally as trustee and all live happily ever after.
Now isn’t that BETTER??
This time Cindy gets a trust written up appointing her friend as the trustee. She funds it with a life insurance policy that she pays for out of her $60K savings. She dies.
The animals immediately go into the care of the trustee who quickly gets the check form the insurance policy cashed and does everything Cindy asked for in her trust. For about a year. Then she meets Robert, a nice man from Nigeria who sweeps her off her feet and convinces her to marry him.
Little by little Robert convinces Sandy to spend less and less on the horses and more and more on him. One day the farrier comes by, his schedule has been cut down to every 4 months by this point, as sees the horses are very thin. He speaks to Sandy about this but she says Robert is an expert and says thin is better.
The farrier tells Sally, Cindy’s sister, about his concerns. Sally tells a lawyer and the next thing you know the state’s attorneys office is enforcing the terms of the trust, removing Sandy as trustee and requiring she pay back all the money she spent on Roberts jewelry and not on the animals, along with a hefty fine. Robert disappears.
The court appoints Sally as trustee and all live happily ever after.
Now isn’t that BETTER??
Saturday, November 8, 2008
Part IV: How to get help
How do you find a qualified person to help you with your animal trust? I have no clue. The usual methods will not work here. The laws are new so years of experience, specialization qualifications, or even word of mouth may not help. In addition, the best person to help you with your trust may not be the best all around person to help you with your other legal needs. I think, and I could be wrong here, but if you have read these posts and read the links provided you should have enough information to test any potential professionals on their knowledge. If they claim expertise they should know at least what has been posted here.
Lawyers are hard to deal with sometimes. I am a lawyer, but even I’ll admit getting a straight answer from us is hard sometimes. Everyone expects us to know everything and if we honestly say “I don’t know” then clients get worried we are not good enough. In my personal life I love to hear “I don’t know, but let me find out”. I like it much better then some canned answer or a pat on the head and a tisk tisk don’t worry your little head about that. I would not rule out help from someone who knows nothing but is willing to learn.
You might try looking for an equine or animal lawyer, but they might not have any expertise or experience in estate planning. So you move on to experienced estate planning lawyers and they have no clue about animals. While there is a growing number of attorneys who have blended their love of animals and their law careers into a practice, they are few and far between. Most animal lawyers concentrate on litigation, contracts, and insurance. They do not do estate planning. Nor should they be expected to be masters of all trades. And what if you really want your long time attorney to write your trust because you respect him and have always used him? Do you dump him just because its not something he has done before? Maybe, maybe not.
Your lawyer may be able to refer you to the right person for the job and work together with that lawyer to develop an entire estate plan that takes care of your animals and everything else. Your lawyer may be of the inquisitive and diligent breed and will tell you he does not know how to do that but will learn. Be aware, lawyers can not charge for the time it takes them to learn a new skill, so if your lawyer tells you its not worth it for him to learn he is not being rude—he means it's not worth so many non-billable hours to learn a skill that he might only be using once. In fact, if this happens you are lucky. You have a good, honest lawyer there.
The opposite is the lawyer who takes very case and every client just based on the legal principal of Res Ipsa Retainer. If you pay, they will do it. They wont bother to do it well or read the case law or look at the changes in the laws, but they will take the $900 software program on trusts they bought and plug in animal everywhere it should say child and charge you for it. You will never know if their work is any good or not because by the time you need it, you will have passed away. Ask then how many years experience they have and do not accept an answer that INCLUDES the combined years of all the non-lawyers in the office. Paralegals rock, but they do not do the kind of work that requires trained legal thinking. They do all the other work that lawyers are useless at like filling out the forms and knowing how to file what where. No lawyer should claim to have 20 years experience based on the fact their paralegal has been doing it that long.
So what do you do??? Start calling around to estate planning experts—and this is a specialty that does have certification—and ask then if they do honorary trusts for animals. On the first round just pass over anyone who says “What?” If you can’t find anyone them move on to animal lawyers who may do estate work and ask them how many years experience they have with estate planning above and beyond that CD that spits out canned trusts. Still no luck? Then google.
Remember, you can shop in a much wider range for a trust then you can for most other legal services. You are not limited to just your state. Your trust can be in the state where you find expert help. That’s a gift. You don’t have to chose between the only 2 lawyers in your small, rural town. Just sever the honorary trust from the rest for your estate planning and find the BEST lawyer for your needs. That lawyer can work with your regular counsel to seamlessly incorporate an honorary trust into your overall estate plan.
Your lawyer can even hire outside counsel to advise her. Its OK for lawyers to pay other lawyers for advice across state lines with your consent, its just not OK for lawyers to charge clients for work in states where they are not licensed to practice. Your main goal is to get the best trust you can that is personalized for your needs and your tax status and will hold up in a court in your state or to get the best state to have a trust in and hire that lawyer. Remember, creating a team is your best bet. If your lawyer is not a team player then she can spend the time to learn all about animal trusts and expand her practice, but just trying to force the facts for a human trust onto animals will not work.
How do you know what to ask a prospective attorney? In most cases you wont have to worry about that. You will get stuck talking to a receptionist or a paralegal whose sole purpose in life seems to be to keep clients and potential clients from actually talking to the lawyer. They may or may not be aware that their employer has been studying honorary trusts and they do not want to be bothered with you asking. I know I sound bitter and little bitchy, but when i have to refer cases out due to conflicts or lack of expertise, I usually end up trying to convince some receptionist that I am not trying to sell the lawyer anything, I just want to give them a client. Its like running the gauntlet and not much fun.
So these are my personal tips for picking a good lawyer from among strangers. DO judge a firm by the employees you talk to. You will be talking to them more then the attorney so they better be helpful, intelligent and not try and scare you away. If an attorney cannot control the employees or is unaware of how they treat clients then move on. I am not saying the attorney should be free to talk to you any time you call, but the receptionist should not be giving you her legal opinion or think you are a loon for asking about something she has never heard of.
DO NOT judge a lawyer by the size of their yellow pages ad. Some of the best lawyers do not even need ads. They get more then enough business from word of mouth or a small ad. There is a rule that says a lawyer cannot claim to “specialize” in anything that does not have an official specialization credential. Very few lawyers have these credentials in more then one field. If you see a huge yellow page ad that lists 10 specializations and 1 or 2 lawyers then move on. They have not bothered to read the rules of ethics so they are not worthy of your trust. Ditto for firms with 1 lawyer who say & associates or “our lawyers” Its misleading and forbidden. They can’t follow their own rules so they wont take the time to research your needs. Lastly, if they can’t tell you if your initial appointment will cost money or is free move on. Don’t judge on whether it costs money, but do judge on the inability to tell you the costs up front. It will only go downhill from there.
ASK about experience and if they claim to be animal experts make sure they are of the same mind as you are. A person who breeds fugly untrained, uncared for animals in their back yards is not an expert just because they have been doing it for 20 years. Do they show? Do they have the same standards of care that you do? Do they understand your animals are more then just personal property to you? Its important that when you say “you know what I mean” that they actually do. That can be too much or too little care. You may mean retirement pasture with little extra care and they may mean full board with daily homeopathic therapy and weekly shakra adjustments. Owning pets and knowing about the pet care industry are not the same.
DO NOT judge quality on price. The world is changing. Many lawyers now have home office and can provide superior services without charging you and arm and a leg on overhead expenses. While a huge office full of antiques and oriental rugs is impressive, do you really need to pay an extra $200 an hour to be impressed? Most success in the field of law comes from excellent marketing. Excellent marketing is not a sure sign of an excellent legal mind. It is a sign of an excellent marking mind. Lawyers are expensive, no doubt about that, but a home based or part-time lawyer then passes savings on to you is just as good as a lawyer that charges you a fortune because he has to spend his time bringing in new clients to be impressed with the decorators taste. The days of picking a lawyer based on how much they can impress the opponent are gone too. We all grew up watching David and Goliath law shows on TV and we have been tainted with the expectation that good layering comes in all size firms. Picking a firm because they employ 300 lawyers is not going to guarantee you anything. In fact, it may mean your work is done by a first year associate and billed at the rate of his managing partner.
FIND a lawyer you can talk top and work with. If you want your accountant to be part of the process, that should not bother your lawyer. If you want an expert to be part of the process, that should not bother your lawyer. It should not be seen as an insult or doubting their skills. It should be seen as the way medicine is run—experts in each field work on getting you healthy under the supervision of one generalist. A healthy estate plan that includes animals may take more then one lawyer to have it thrive and survive in the hostile world of greedy heirs and fickle judges. Just like your Vet and farrier and trainer all must work together for the best performance out of your horse, sometimes a tax expert and an animal expert and an estate expert should work together to make sure all goes smoothly after you are gone. That piece of paper, that trust, must do all for your animals that you would yourself after you are gone. Take the time to make sure its right.
Lawyers are hard to deal with sometimes. I am a lawyer, but even I’ll admit getting a straight answer from us is hard sometimes. Everyone expects us to know everything and if we honestly say “I don’t know” then clients get worried we are not good enough. In my personal life I love to hear “I don’t know, but let me find out”. I like it much better then some canned answer or a pat on the head and a tisk tisk don’t worry your little head about that. I would not rule out help from someone who knows nothing but is willing to learn.
You might try looking for an equine or animal lawyer, but they might not have any expertise or experience in estate planning. So you move on to experienced estate planning lawyers and they have no clue about animals. While there is a growing number of attorneys who have blended their love of animals and their law careers into a practice, they are few and far between. Most animal lawyers concentrate on litigation, contracts, and insurance. They do not do estate planning. Nor should they be expected to be masters of all trades. And what if you really want your long time attorney to write your trust because you respect him and have always used him? Do you dump him just because its not something he has done before? Maybe, maybe not.
Your lawyer may be able to refer you to the right person for the job and work together with that lawyer to develop an entire estate plan that takes care of your animals and everything else. Your lawyer may be of the inquisitive and diligent breed and will tell you he does not know how to do that but will learn. Be aware, lawyers can not charge for the time it takes them to learn a new skill, so if your lawyer tells you its not worth it for him to learn he is not being rude—he means it's not worth so many non-billable hours to learn a skill that he might only be using once. In fact, if this happens you are lucky. You have a good, honest lawyer there.
The opposite is the lawyer who takes very case and every client just based on the legal principal of Res Ipsa Retainer. If you pay, they will do it. They wont bother to do it well or read the case law or look at the changes in the laws, but they will take the $900 software program on trusts they bought and plug in animal everywhere it should say child and charge you for it. You will never know if their work is any good or not because by the time you need it, you will have passed away. Ask then how many years experience they have and do not accept an answer that INCLUDES the combined years of all the non-lawyers in the office. Paralegals rock, but they do not do the kind of work that requires trained legal thinking. They do all the other work that lawyers are useless at like filling out the forms and knowing how to file what where. No lawyer should claim to have 20 years experience based on the fact their paralegal has been doing it that long.
So what do you do??? Start calling around to estate planning experts—and this is a specialty that does have certification—and ask then if they do honorary trusts for animals. On the first round just pass over anyone who says “What?” If you can’t find anyone them move on to animal lawyers who may do estate work and ask them how many years experience they have with estate planning above and beyond that CD that spits out canned trusts. Still no luck? Then google.
Remember, you can shop in a much wider range for a trust then you can for most other legal services. You are not limited to just your state. Your trust can be in the state where you find expert help. That’s a gift. You don’t have to chose between the only 2 lawyers in your small, rural town. Just sever the honorary trust from the rest for your estate planning and find the BEST lawyer for your needs. That lawyer can work with your regular counsel to seamlessly incorporate an honorary trust into your overall estate plan.
Your lawyer can even hire outside counsel to advise her. Its OK for lawyers to pay other lawyers for advice across state lines with your consent, its just not OK for lawyers to charge clients for work in states where they are not licensed to practice. Your main goal is to get the best trust you can that is personalized for your needs and your tax status and will hold up in a court in your state or to get the best state to have a trust in and hire that lawyer. Remember, creating a team is your best bet. If your lawyer is not a team player then she can spend the time to learn all about animal trusts and expand her practice, but just trying to force the facts for a human trust onto animals will not work.
How do you know what to ask a prospective attorney? In most cases you wont have to worry about that. You will get stuck talking to a receptionist or a paralegal whose sole purpose in life seems to be to keep clients and potential clients from actually talking to the lawyer. They may or may not be aware that their employer has been studying honorary trusts and they do not want to be bothered with you asking. I know I sound bitter and little bitchy, but when i have to refer cases out due to conflicts or lack of expertise, I usually end up trying to convince some receptionist that I am not trying to sell the lawyer anything, I just want to give them a client. Its like running the gauntlet and not much fun.
So these are my personal tips for picking a good lawyer from among strangers. DO judge a firm by the employees you talk to. You will be talking to them more then the attorney so they better be helpful, intelligent and not try and scare you away. If an attorney cannot control the employees or is unaware of how they treat clients then move on. I am not saying the attorney should be free to talk to you any time you call, but the receptionist should not be giving you her legal opinion or think you are a loon for asking about something she has never heard of.
DO NOT judge a lawyer by the size of their yellow pages ad. Some of the best lawyers do not even need ads. They get more then enough business from word of mouth or a small ad. There is a rule that says a lawyer cannot claim to “specialize” in anything that does not have an official specialization credential. Very few lawyers have these credentials in more then one field. If you see a huge yellow page ad that lists 10 specializations and 1 or 2 lawyers then move on. They have not bothered to read the rules of ethics so they are not worthy of your trust. Ditto for firms with 1 lawyer who say & associates or “our lawyers” Its misleading and forbidden. They can’t follow their own rules so they wont take the time to research your needs. Lastly, if they can’t tell you if your initial appointment will cost money or is free move on. Don’t judge on whether it costs money, but do judge on the inability to tell you the costs up front. It will only go downhill from there.
ASK about experience and if they claim to be animal experts make sure they are of the same mind as you are. A person who breeds fugly untrained, uncared for animals in their back yards is not an expert just because they have been doing it for 20 years. Do they show? Do they have the same standards of care that you do? Do they understand your animals are more then just personal property to you? Its important that when you say “you know what I mean” that they actually do. That can be too much or too little care. You may mean retirement pasture with little extra care and they may mean full board with daily homeopathic therapy and weekly shakra adjustments. Owning pets and knowing about the pet care industry are not the same.
DO NOT judge quality on price. The world is changing. Many lawyers now have home office and can provide superior services without charging you and arm and a leg on overhead expenses. While a huge office full of antiques and oriental rugs is impressive, do you really need to pay an extra $200 an hour to be impressed? Most success in the field of law comes from excellent marketing. Excellent marketing is not a sure sign of an excellent legal mind. It is a sign of an excellent marking mind. Lawyers are expensive, no doubt about that, but a home based or part-time lawyer then passes savings on to you is just as good as a lawyer that charges you a fortune because he has to spend his time bringing in new clients to be impressed with the decorators taste. The days of picking a lawyer based on how much they can impress the opponent are gone too. We all grew up watching David and Goliath law shows on TV and we have been tainted with the expectation that good layering comes in all size firms. Picking a firm because they employ 300 lawyers is not going to guarantee you anything. In fact, it may mean your work is done by a first year associate and billed at the rate of his managing partner.
FIND a lawyer you can talk top and work with. If you want your accountant to be part of the process, that should not bother your lawyer. If you want an expert to be part of the process, that should not bother your lawyer. It should not be seen as an insult or doubting their skills. It should be seen as the way medicine is run—experts in each field work on getting you healthy under the supervision of one generalist. A healthy estate plan that includes animals may take more then one lawyer to have it thrive and survive in the hostile world of greedy heirs and fickle judges. Just like your Vet and farrier and trainer all must work together for the best performance out of your horse, sometimes a tax expert and an animal expert and an estate expert should work together to make sure all goes smoothly after you are gone. That piece of paper, that trust, must do all for your animals that you would yourself after you are gone. Take the time to make sure its right.
Wednesday, November 5, 2008
Part III: Fun with Funding!
Funding a trust is no fun. There are so many choices to make and so many tax consequences this is where a good tax lawyer or CPA comes into play. How you fund your trust has to be carefully tailored to your exact circumstances. You can fund it now or later, make it set in stone or flexible, or pay too much in taxes or not enough. Don’t ask anyone but the most highly trained professional to help you make those decisions. Like, for example, don’t ask me!
I can tell you what choices you have and why it matters. That I can do. Lets start with what poor people do. If you have enough animals this probably applies to you. We’ll lay off Cindy for a while and use me as an example. I am not the average horse owner, but I make a pretty good example for the worst-case scenario.
I am not rolling in cash. I have no investments, life insurance or retirements plans. In fact I do not even make much money. My funding plan for my trust does not take much tax expertise to figure out. I am not trying to get any favorable tax relief out of funding my trust; I am just hoping to take care of my animals. So I have 2 choices: 1) I can fund my trust with stuff left over when I die or 2) I can fund my trust with piles of cash and assets lying around now. Taxes will be effected by whether I make my trust “revocable” or non-revocable”. But like I said, taxes are not my problem. Cash is. I don’t have any.
What I do have is some real estate. Its not worth much, but its enough to care for a few pets after I am gone. However, how long will it take to convert that land into cash for board payments and hay? Who is going to pay the bills until the land is sold and the assets converted to cash? In my plan its me. Yes, I know I said I have no cash, but I am worth more dead then alive.
I can buy a small life insurance policy and make my trust the beneficiary. I don’t need a huge policy with huge monthly payments, but one large enough to instantly start paying out $$$ to my trust. Then the trustee can sell the land and put that money into the trust too. Its sort of a gap policy for land rich, cash poor people. The IRS doesn’t care about any of this because they are still going to continue to tax my income as income. As long as I can change my mind (revocable) and use the assets (my land), they don’t want to be bothered with me. Leaving all your assets to a trust you create in life but reserving the right to change it until your death is a revocable living trust. Leaving all your assets to the trust is a pour-over provision that lets those assets stay out of probate and get right to work taking care of your pets.
What if I had no land? Then I would buy a much larger life insurance policy and pour all the coverage into my trust. That’s still going to cost me money, but not all at once and not money I can’t get a hold of if I need it. You can borrow against a good life insurance policy with no interest. Its low risk with no returns in your lifetime, but its a great way to build up wealth for a trust you only want after you are dead. You die, the trust gets funded fast and all is well. Yeah, I know, it still sucks you died, but you won’t care.
Some states require you find your living trust immediately to make it valid, but that does not mean fully fund it out of your savings account. It means tell us where this money is coming from. For me it’s coming from my life insurance policy. Just like taxes, there is no way to avoid someday dying. They can be pretty sure it’s going to get cashed in at some point. Or another method is to fund it with something—like $10. It does not have to be fully funded for all your purposes; they just want a sign you understand you are doing something legally binding and formal. Don’t put a bunch of money that should be out working for you into a living trust to just sit there and wait for you to die.
Now lets pretend I am rich.
Sorry, I was enjoying that. It honestly took me a long time to understand trust law because its simply not conceivable to me that someone has SO much money they need to give it away. But guess, what, its true. Our laws were set up to prohibit any situation that could rise to a monarchy or upper class like we left behind in England a few hundred years ago. Dynasties, legacies, or keeping way more then you need have never been part of the American way. If you have more then you need they will take it way in the form of taxes. That’s not the position of any political party, that is just what we ran away from.
Since paying so much in taxes galls most of us we have all kinds of ways for rich people to get rid of all that excess money but still not give it to the government. Things like trusts. If you really don’t want to “own” that income you create a trust for someone who pays less in taxes like your children or you create a trust that is its own “person”. It gets its own tax ID and pays its own taxes. You can dump a large chunk of change into a trust and not have to pay income taxes on it. Or give it way on death. Nice.
In fact if you are so burdened with money now you could set up mutual trusts with a like- minded friend and put all your animals into a trust now. The trust would just carry on after you are gone. You just probably shouldn’t set up a trust for your animals with you as the trustee alone. The law thinks you already have a duty to provide for your children so that wont work with kids and I expect a court would find the same with animals. Or not. I kind of think it’s cheating so I wont recommend it.
The purpose of most trust tax laws and trust laws is to keep the small proportion of people who want to have their cake and eat it too from cheating the IRS, their children, their creditors, or their ex-wives. If you are the only trustee and the only beneficiary and you get to play with all your toys alone then people can reach that money. If you aren’t then they can’t. Trusts are often used to not only avoid the tax man but to protect assets from judgments against the owner of the property or to keep a person entitled to funds from getting them. If you set up a trust for your animals then you are not the beneficiary.
For a large farm owner with lots of liability and great tax burdens dumping a chunk of money into a irrevocable trust for pets now could be a safe way to make sure those funds are there later. If someone gets hurt on your farm they can’t “win” that money in lawsuit. You can’t spend it or use it either, but the point is to protect those assets from others who want it and to protect your animals if you die or become incapacitated.
Rich people have to do lot of estate planning. An honorary trust for pets in addition to other the other trusts and tricks and treats is not complete estate planning. Remember the rule—you find a way to protect your assets or its “redistributed” to all. The estate taxes are up in the air at any time. Right now the death tax is up over 2 million. When you actually die? Who knows?
So the rules are fairly simple after all, but complicated too. If you just want to provide for your animals leave some form of funding in a revocable trust and reference it in your documents and will. If you have excess money or a need to protect your assets talk to a professional and see if a irrevocable trust funded now is a better tax bet for you. Taxes may mean state and federal estate taxes, income taxes or property taxes. If you are cash poor fund with a life insurance policy and pour over other assets when they can be liquidated. If you are cash flush go find a really good professional to work out a complete estate plan.
Then there is the rule against perpetuities, which you can just plain ignore. It doesn’t apply to honorary trusts for animals and it will just make your brain hurt!
Now I guess I have to stop pretending I am rich:>
I can tell you what choices you have and why it matters. That I can do. Lets start with what poor people do. If you have enough animals this probably applies to you. We’ll lay off Cindy for a while and use me as an example. I am not the average horse owner, but I make a pretty good example for the worst-case scenario.
I am not rolling in cash. I have no investments, life insurance or retirements plans. In fact I do not even make much money. My funding plan for my trust does not take much tax expertise to figure out. I am not trying to get any favorable tax relief out of funding my trust; I am just hoping to take care of my animals. So I have 2 choices: 1) I can fund my trust with stuff left over when I die or 2) I can fund my trust with piles of cash and assets lying around now. Taxes will be effected by whether I make my trust “revocable” or non-revocable”. But like I said, taxes are not my problem. Cash is. I don’t have any.
What I do have is some real estate. Its not worth much, but its enough to care for a few pets after I am gone. However, how long will it take to convert that land into cash for board payments and hay? Who is going to pay the bills until the land is sold and the assets converted to cash? In my plan its me. Yes, I know I said I have no cash, but I am worth more dead then alive.
I can buy a small life insurance policy and make my trust the beneficiary. I don’t need a huge policy with huge monthly payments, but one large enough to instantly start paying out $$$ to my trust. Then the trustee can sell the land and put that money into the trust too. Its sort of a gap policy for land rich, cash poor people. The IRS doesn’t care about any of this because they are still going to continue to tax my income as income. As long as I can change my mind (revocable) and use the assets (my land), they don’t want to be bothered with me. Leaving all your assets to a trust you create in life but reserving the right to change it until your death is a revocable living trust. Leaving all your assets to the trust is a pour-over provision that lets those assets stay out of probate and get right to work taking care of your pets.
What if I had no land? Then I would buy a much larger life insurance policy and pour all the coverage into my trust. That’s still going to cost me money, but not all at once and not money I can’t get a hold of if I need it. You can borrow against a good life insurance policy with no interest. Its low risk with no returns in your lifetime, but its a great way to build up wealth for a trust you only want after you are dead. You die, the trust gets funded fast and all is well. Yeah, I know, it still sucks you died, but you won’t care.
Some states require you find your living trust immediately to make it valid, but that does not mean fully fund it out of your savings account. It means tell us where this money is coming from. For me it’s coming from my life insurance policy. Just like taxes, there is no way to avoid someday dying. They can be pretty sure it’s going to get cashed in at some point. Or another method is to fund it with something—like $10. It does not have to be fully funded for all your purposes; they just want a sign you understand you are doing something legally binding and formal. Don’t put a bunch of money that should be out working for you into a living trust to just sit there and wait for you to die.
Now lets pretend I am rich.
Sorry, I was enjoying that. It honestly took me a long time to understand trust law because its simply not conceivable to me that someone has SO much money they need to give it away. But guess, what, its true. Our laws were set up to prohibit any situation that could rise to a monarchy or upper class like we left behind in England a few hundred years ago. Dynasties, legacies, or keeping way more then you need have never been part of the American way. If you have more then you need they will take it way in the form of taxes. That’s not the position of any political party, that is just what we ran away from.
Since paying so much in taxes galls most of us we have all kinds of ways for rich people to get rid of all that excess money but still not give it to the government. Things like trusts. If you really don’t want to “own” that income you create a trust for someone who pays less in taxes like your children or you create a trust that is its own “person”. It gets its own tax ID and pays its own taxes. You can dump a large chunk of change into a trust and not have to pay income taxes on it. Or give it way on death. Nice.
In fact if you are so burdened with money now you could set up mutual trusts with a like- minded friend and put all your animals into a trust now. The trust would just carry on after you are gone. You just probably shouldn’t set up a trust for your animals with you as the trustee alone. The law thinks you already have a duty to provide for your children so that wont work with kids and I expect a court would find the same with animals. Or not. I kind of think it’s cheating so I wont recommend it.
The purpose of most trust tax laws and trust laws is to keep the small proportion of people who want to have their cake and eat it too from cheating the IRS, their children, their creditors, or their ex-wives. If you are the only trustee and the only beneficiary and you get to play with all your toys alone then people can reach that money. If you aren’t then they can’t. Trusts are often used to not only avoid the tax man but to protect assets from judgments against the owner of the property or to keep a person entitled to funds from getting them. If you set up a trust for your animals then you are not the beneficiary.
For a large farm owner with lots of liability and great tax burdens dumping a chunk of money into a irrevocable trust for pets now could be a safe way to make sure those funds are there later. If someone gets hurt on your farm they can’t “win” that money in lawsuit. You can’t spend it or use it either, but the point is to protect those assets from others who want it and to protect your animals if you die or become incapacitated.
Rich people have to do lot of estate planning. An honorary trust for pets in addition to other the other trusts and tricks and treats is not complete estate planning. Remember the rule—you find a way to protect your assets or its “redistributed” to all. The estate taxes are up in the air at any time. Right now the death tax is up over 2 million. When you actually die? Who knows?
So the rules are fairly simple after all, but complicated too. If you just want to provide for your animals leave some form of funding in a revocable trust and reference it in your documents and will. If you have excess money or a need to protect your assets talk to a professional and see if a irrevocable trust funded now is a better tax bet for you. Taxes may mean state and federal estate taxes, income taxes or property taxes. If you are cash poor fund with a life insurance policy and pour over other assets when they can be liquidated. If you are cash flush go find a really good professional to work out a complete estate plan.
Then there is the rule against perpetuities, which you can just plain ignore. It doesn’t apply to honorary trusts for animals and it will just make your brain hurt!
Now I guess I have to stop pretending I am rich:>
Monday, November 3, 2008
Part II: What to put in there
Today lets talk about the trust itself, or the Trust Instrument as its called. Each state will vary in the specific details, but a trust is much harder to screw up then a will. With a will just signing it in the wrong place or having witnesses sign in the wrong order can void it. With a trust, in most states, just saying THIS IS A TRUST and making sure you have identifiable beneficiaries is enough. The rest is all the gruesome details that make YOUR trust reflect YOUR wishes.
Trusts can be pretty specific. While you lose the rights to control personal property after your death with most other testamentary documents, in a trust you can decide who gets what for when and where and how. There are only a few things that cannot be put in a trust because they are against public policy, but most of then would never be in a honorary trust for animals anyway. For example, you cannot mess with marriage. You cannot tell people they get $$$$ as long as they do not marry or as long as they leave that deadbeat husband you hate. Its kind of obvious how these situations do not arise with pets. Fe fe gets the benefits of the trust no matter how much she thinks she is in love with that Golden Retriever down the road. Animals can’t marry and your trustee can just decline if you expect her to leave her husband to administer your trust.
Remember, a trust is administered by a trustee or co-trustees. Somewhere down the line whatever is left of the trust funds will go to a real live human who survives you and your animals. That real live human has in interest in the trust funds NOT spent on your animal so that there will be more left over for them. So that niece you really didn’t like but is your only living heir after the trust has served its purpose? She may want to go to court and argue that your horse’s board bill is unreasonable and that your trustee is mismanaging your trust by spending $300 a month on special shoes.
Now wait, don’t get mad at me! I know your horse may really need those shoes and that $300 is not that much, but a non-horsey judge could fall out of his bench if he hears the horse’s board and shoes alone are $1,500 a month! Why he can see classified ads in the paper for board at $100 a month and ads for barefoot trimmers at $35 a pop. Surely this is waste of the trust and the poor remainder person has a right to limit this weekly hemorrhaging of funds! Don’t even get him started on the doggy day care or the massage therapist or the person hired just to love on the animal for a few hours a day! All you wrote in your trust was that the funds shall be used to care for your animals after you death. The judge could interpret that in whatever way his personal experience and the opposing lawyer make sound reasonable. As animal owners and responsible ones, we sometimes forget we look insane to regular people.
So, when I write a trust I not only outline what every term means to me and define it, I also throw in a couple of citations to scientific studies or reliable sources to help whomever is hired to defend that document in the future. If I am the trustee its not going to be me and if I too am dead is not going to be me. I want a written testimonial of completely spelled out terms that would allow a total stranger to pick up that trust and know just what you wanted, what standards you expect and apply and enough evidence to back it up a reasonable and necessary expense.
For example, in my old estate planning documents, pre-honorary trust days, my executor was to sell my property and use it for the care of my animals. Now, I could only know this would be carried out based on his honor and integrity, but he would have followed my wishes. Unfortunately, he would have only followed my wishes to what he thought was “reasonable” based on his personal experience. I knew his personal experience with horses was having a few grade animals in a barbed wire paddock and galloping them around when he felt like it as a child.
He told me a story once about how funny his old mare had been. When she wanted to eat grass, if which there was none in her small paddock, she would run as fast as she could and “fall” under the barbed wire fence to get to the other side and eat. He thought this story was amusing. Me? Not so much. That thought of my executor picking out and judging the quality of a safe and professional place to board my half nuts OTTB scared me more then the dying itself. Since he was a little older then me and fancied himself a lot smarter no amount of clear directions was going to change what he decided was the “right” thing to do with my animals once I was gone. Its not that he would have done what he considered wrong, its just that he would have not done what I considered the bare minimum.
He would have found a place where lots of horses were turned out in a barbed wire pasture and fed no grain in the summer and only hay in the winter. He would have been impressed if they had shots once a year and feet trimmed every 6 months. He would not have noticed the quality of care or been able to understand that a 16.3 Tb who cribs will not thrive just because a few small QH’s are fat and happy in that situation. He would have been unable to judge what I would have wanted and what the horse actually needed. However, at least he would have been trusted to not just dump the horse at auction and keep the4 money. In his mind he would have been doing his best.
Thankfully, those days are gone. In a trust I explicitly outline the standards of care the client wants and expects for their animal. Long standing terms that used to mean the same thing to most people are no longer good enough. When I was younger “full board” meant a stall, turn out, feeding, hay and most daily routine stuff. Field board meant a pasture or paddock, feed and daily checking. Rough board or self care meant to basically rented a space and did all your own work and bought all your own feed. Today those terms are meaningless.
I do not know what is being offered anymore without playing 20 questions. Full board may be your horse turned out in a field but the barn manager feeds them. Full board may mean you have a stall and feed and hay, but nobody cleans the stall or you have to pay extra for turnout for a few hours a week. I am not knocking differing methods of horse care, but there are no longer any meaningful standardized terms to use for what you think you mean. Your trust should be specific.
Here is an example of a term for where my horse should be kept “The facilities shall offer daily turn out in a large enough area to allow for galloping, trotting or running without reaching a fence-line in less then 20 strides. All fences should be constructed of wood, electric tape, vinyl, or other materials that do not shatter, splinter, break, or injure the horse under usual circumstances. No horse shall be turned out in high tensile wire fences, barbed wire fences, single strand of electric braided fences or any fence in disrepair or with a high probability of injury to a horse.” Now that’s just me. That’s the same kind of fencing I would expect of a boarding barn if I were out shopping for one. It does not exclude chain link or brick walls or stone fences or anything else super expensive but what I still consider safe, but it does exclude what in my experience I do not consider safe. I want my horse as safe after I am gone as he was when I was still around.
In reality I want him safer. I can’t use my judgment and if someone else has to decide I want them to clearly understand WWID? My present fence would probably not meet my own standards. However, if I am dead and ALL my assets go to the horse without competing with my finical needs? Then my standards will be my ideals. Spending ALL my money on a good fence is not going to cause me to miss any payments on my Visa bill or starve to death. Every penny I left to my animals can be spent on their safety can comfort. No more competing with me for the same dollar!
A very good guideline for the care and faculties of horses can be found in the Federal standards for care of research horses. It covers a lot of the same stuff Pony Club does or at least a good Cherry Hill book on horse keeping as far as safety and minimum standards and what court can argue that the federal government is just a bunch of spoiled animal rights whining babies? However, what it doesn’t cover is quality of life issues.
That’s where trusts may get tricky in the future. Several studies have shown that PMU mares do not suffer from being kept in a stall with very little movement or environmental stimulation or months at a time. Cross-cultural horse keeping varies widely and most horses do not suffer from methods that would seem appalling to a classically trained horseman. But just because all their basic physical needs are being met, is that enough for most of us? What about social interaction with other horses? What about a good forehead scratching or grooming that is not necessary for survival or health? What about riding or exercise or just being loved on?
These are things a trust may or may not cover, but it doesn’t hurt to put it in there. “All horses hall have daily exposure to social interaction with a suitable companion. All horses shall be groomed at least once a week to for health and safety reasons and to facilitate relation and reinforce training of ground manners.” Now doesn’t that clause sound scientific and with a purpose for more then just giving Dobbin his daily hug? Now I can even write a fairly good clause explaining the necessity of riding the horse, but where I run into trouble is showing the horse.
Lets face it. Showing is to either please the owner for ego gratification or to increase the value of the horses. Dead people clearly gain no satisfaction from winning ribbons. Horses that are beneficiaries of a trust are not going to be sold so their value does not need to increase. Can I write a valid reason for continuing on with a horse’s show career that makes sense to a judge? Does it make sense to anybody? I think it does. Its your life’s work. Your legacy. If your horse might go on to become a national champion and your trusts can afford it, does that justify “the care and well being” of your honorary trust spending $$$$$$$$$$$$$$$ to keep competing the animal? Of course a court would still have to rule on that, but for some animals in some rare situations I could make a valid argument that it is necessary and in the best interest of the animal and the purpose of the trust. I might lose, but if I did only that small clause in the trust would change. It would not invalidate the whole thing.
Lastly, do not name specific animals. Your identifiable beneficiaries should be all animals you own at death or incapacitation and all animals in gestation at that time. If there is a specific problem or need with a certain animal, put that in there, but do not just name you animals that are around when you write the trust.
So for your homework assignment tonight start thinking about what standards you apply to qualify as good horse keeping. What things should be no nos for your animals and what things should be necessities. Can a valid argument be made that these things are standard practices in your area or necessary for the health and well being or your animals? Do you want to try and provide a human companion for your animal? Riding? Grooming? Manes pulled or au natural?
Now I am off to my fist ever Margarita Monday madness and I hope it still on! I missed the first 2 and its the night before the elections, so they may have canceled, but I really hope its on and I get to meet all the new and interesting people in Aiken who are coming together just to network and celebrate being lucky enough to live in a place where 8/10 people really do want to just sit around and talk about horses!
I am also pleased to announce I have figured out how to do paragraph breaks and not have this blog translate itself into Hindu or Farsi. For several hours everything I typed turned into a foreign language. Perhaps one day soon I will master the paragraph indent, but for now just no unigraph should be easier on the eyes:>
Trusts can be pretty specific. While you lose the rights to control personal property after your death with most other testamentary documents, in a trust you can decide who gets what for when and where and how. There are only a few things that cannot be put in a trust because they are against public policy, but most of then would never be in a honorary trust for animals anyway. For example, you cannot mess with marriage. You cannot tell people they get $$$$ as long as they do not marry or as long as they leave that deadbeat husband you hate. Its kind of obvious how these situations do not arise with pets. Fe fe gets the benefits of the trust no matter how much she thinks she is in love with that Golden Retriever down the road. Animals can’t marry and your trustee can just decline if you expect her to leave her husband to administer your trust.
Remember, a trust is administered by a trustee or co-trustees. Somewhere down the line whatever is left of the trust funds will go to a real live human who survives you and your animals. That real live human has in interest in the trust funds NOT spent on your animal so that there will be more left over for them. So that niece you really didn’t like but is your only living heir after the trust has served its purpose? She may want to go to court and argue that your horse’s board bill is unreasonable and that your trustee is mismanaging your trust by spending $300 a month on special shoes.
Now wait, don’t get mad at me! I know your horse may really need those shoes and that $300 is not that much, but a non-horsey judge could fall out of his bench if he hears the horse’s board and shoes alone are $1,500 a month! Why he can see classified ads in the paper for board at $100 a month and ads for barefoot trimmers at $35 a pop. Surely this is waste of the trust and the poor remainder person has a right to limit this weekly hemorrhaging of funds! Don’t even get him started on the doggy day care or the massage therapist or the person hired just to love on the animal for a few hours a day! All you wrote in your trust was that the funds shall be used to care for your animals after you death. The judge could interpret that in whatever way his personal experience and the opposing lawyer make sound reasonable. As animal owners and responsible ones, we sometimes forget we look insane to regular people.
So, when I write a trust I not only outline what every term means to me and define it, I also throw in a couple of citations to scientific studies or reliable sources to help whomever is hired to defend that document in the future. If I am the trustee its not going to be me and if I too am dead is not going to be me. I want a written testimonial of completely spelled out terms that would allow a total stranger to pick up that trust and know just what you wanted, what standards you expect and apply and enough evidence to back it up a reasonable and necessary expense.
For example, in my old estate planning documents, pre-honorary trust days, my executor was to sell my property and use it for the care of my animals. Now, I could only know this would be carried out based on his honor and integrity, but he would have followed my wishes. Unfortunately, he would have only followed my wishes to what he thought was “reasonable” based on his personal experience. I knew his personal experience with horses was having a few grade animals in a barbed wire paddock and galloping them around when he felt like it as a child.
He told me a story once about how funny his old mare had been. When she wanted to eat grass, if which there was none in her small paddock, she would run as fast as she could and “fall” under the barbed wire fence to get to the other side and eat. He thought this story was amusing. Me? Not so much. That thought of my executor picking out and judging the quality of a safe and professional place to board my half nuts OTTB scared me more then the dying itself. Since he was a little older then me and fancied himself a lot smarter no amount of clear directions was going to change what he decided was the “right” thing to do with my animals once I was gone. Its not that he would have done what he considered wrong, its just that he would have not done what I considered the bare minimum.
He would have found a place where lots of horses were turned out in a barbed wire pasture and fed no grain in the summer and only hay in the winter. He would have been impressed if they had shots once a year and feet trimmed every 6 months. He would not have noticed the quality of care or been able to understand that a 16.3 Tb who cribs will not thrive just because a few small QH’s are fat and happy in that situation. He would have been unable to judge what I would have wanted and what the horse actually needed. However, at least he would have been trusted to not just dump the horse at auction and keep the4 money. In his mind he would have been doing his best.
Thankfully, those days are gone. In a trust I explicitly outline the standards of care the client wants and expects for their animal. Long standing terms that used to mean the same thing to most people are no longer good enough. When I was younger “full board” meant a stall, turn out, feeding, hay and most daily routine stuff. Field board meant a pasture or paddock, feed and daily checking. Rough board or self care meant to basically rented a space and did all your own work and bought all your own feed. Today those terms are meaningless.
I do not know what is being offered anymore without playing 20 questions. Full board may be your horse turned out in a field but the barn manager feeds them. Full board may mean you have a stall and feed and hay, but nobody cleans the stall or you have to pay extra for turnout for a few hours a week. I am not knocking differing methods of horse care, but there are no longer any meaningful standardized terms to use for what you think you mean. Your trust should be specific.
Here is an example of a term for where my horse should be kept “The facilities shall offer daily turn out in a large enough area to allow for galloping, trotting or running without reaching a fence-line in less then 20 strides. All fences should be constructed of wood, electric tape, vinyl, or other materials that do not shatter, splinter, break, or injure the horse under usual circumstances. No horse shall be turned out in high tensile wire fences, barbed wire fences, single strand of electric braided fences or any fence in disrepair or with a high probability of injury to a horse.” Now that’s just me. That’s the same kind of fencing I would expect of a boarding barn if I were out shopping for one. It does not exclude chain link or brick walls or stone fences or anything else super expensive but what I still consider safe, but it does exclude what in my experience I do not consider safe. I want my horse as safe after I am gone as he was when I was still around.
In reality I want him safer. I can’t use my judgment and if someone else has to decide I want them to clearly understand WWID? My present fence would probably not meet my own standards. However, if I am dead and ALL my assets go to the horse without competing with my finical needs? Then my standards will be my ideals. Spending ALL my money on a good fence is not going to cause me to miss any payments on my Visa bill or starve to death. Every penny I left to my animals can be spent on their safety can comfort. No more competing with me for the same dollar!
A very good guideline for the care and faculties of horses can be found in the Federal standards for care of research horses. It covers a lot of the same stuff Pony Club does or at least a good Cherry Hill book on horse keeping as far as safety and minimum standards and what court can argue that the federal government is just a bunch of spoiled animal rights whining babies? However, what it doesn’t cover is quality of life issues.
That’s where trusts may get tricky in the future. Several studies have shown that PMU mares do not suffer from being kept in a stall with very little movement or environmental stimulation or months at a time. Cross-cultural horse keeping varies widely and most horses do not suffer from methods that would seem appalling to a classically trained horseman. But just because all their basic physical needs are being met, is that enough for most of us? What about social interaction with other horses? What about a good forehead scratching or grooming that is not necessary for survival or health? What about riding or exercise or just being loved on?
These are things a trust may or may not cover, but it doesn’t hurt to put it in there. “All horses hall have daily exposure to social interaction with a suitable companion. All horses shall be groomed at least once a week to for health and safety reasons and to facilitate relation and reinforce training of ground manners.” Now doesn’t that clause sound scientific and with a purpose for more then just giving Dobbin his daily hug? Now I can even write a fairly good clause explaining the necessity of riding the horse, but where I run into trouble is showing the horse.
Lets face it. Showing is to either please the owner for ego gratification or to increase the value of the horses. Dead people clearly gain no satisfaction from winning ribbons. Horses that are beneficiaries of a trust are not going to be sold so their value does not need to increase. Can I write a valid reason for continuing on with a horse’s show career that makes sense to a judge? Does it make sense to anybody? I think it does. Its your life’s work. Your legacy. If your horse might go on to become a national champion and your trusts can afford it, does that justify “the care and well being” of your honorary trust spending $$$$$$$$$$$$$$$ to keep competing the animal? Of course a court would still have to rule on that, but for some animals in some rare situations I could make a valid argument that it is necessary and in the best interest of the animal and the purpose of the trust. I might lose, but if I did only that small clause in the trust would change. It would not invalidate the whole thing.
Lastly, do not name specific animals. Your identifiable beneficiaries should be all animals you own at death or incapacitation and all animals in gestation at that time. If there is a specific problem or need with a certain animal, put that in there, but do not just name you animals that are around when you write the trust.
So for your homework assignment tonight start thinking about what standards you apply to qualify as good horse keeping. What things should be no nos for your animals and what things should be necessities. Can a valid argument be made that these things are standard practices in your area or necessary for the health and well being or your animals? Do you want to try and provide a human companion for your animal? Riding? Grooming? Manes pulled or au natural?
Now I am off to my fist ever Margarita Monday madness and I hope it still on! I missed the first 2 and its the night before the elections, so they may have canceled, but I really hope its on and I get to meet all the new and interesting people in Aiken who are coming together just to network and celebrate being lucky enough to live in a place where 8/10 people really do want to just sit around and talk about horses!
I am also pleased to announce I have figured out how to do paragraph breaks and not have this blog translate itself into Hindu or Farsi. For several hours everything I typed turned into a foreign language. Perhaps one day soon I will master the paragraph indent, but for now just no unigraph should be easier on the eyes:>
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