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:>

No comments:

Post a Comment

If the comments do not work, somebody please e-mail me and let me know. Thnx!