How To Improve the Image of Attorneys and Serve Clients More Effectively

How To Improve the Image of Attorneys and Serve Clients More Effectively

Harry S. Truman once said “Always do right; you’ll gratify some and astonish the rest.” That should be every attorneys motto when dealing with their clients.

The image of the attorney has deteriorated to the crises stage. The law schools, bar associations and Ohio Supreme Court should address this issue, since it has resulted in people seeking non-lawyers for their legal problems.

All too often people who have legal issues are afraid to talk to a lawyer. They may have had a bad experience themselves or heard a horror story about someone they know.

Some of those in need of legal assistance are desperately afraid of dealing with an attorney, who they don’t trust or who they are afraid will overcharge them. The result is they may purchase fill-in-the-blank forms from office supply stores, try to do complicated matters themselves or risk breaking the law to get legal work done by a non-attorney who claims to know what they are doing. The result is a mess that may cost them tremendous money and/or hardship.

There are simple rules that all attorneys should follow to rebuild the fractured image of the legal profession.

Attorneys need to be more sensitive to the client’s needs. The average person that is in need of an attorney is at a vulnerable time, often confused and anxious. Allow them some leeway to express themselves and understand their pain.

Attorneys should treat their clients with respect and treasure their trust. It is a tremendous duty to assist someone and that has to be done with great care.

Attorneys should be committed to the principle that their client always comes first and the attorney works for them. It is a great honor to be retained as a legal counsel and it should be every attorneys goal to do the work quickly, accurately and without problems.

Attorneys should do a better job of communicating with their clients by keeping them updated with their case, returning telephone calls promptly, and sending them updates on relevant changes in the laws.

Using legalese might confuse someone, so it is better to use simple language. That doesn't mean talking down to your client, but making sure what you are saying. If your client doesn’t understand what you have told them, you have failed in communication which could lead to more problems, not the least of which if their anger toward you.

Attorney should treat their clients with respect and not speak to them condescendingly. Because it can be stressful and expensive, the client may not be 100 percent happy with their legal experience, but they should feel that thier attorney gave them excellent representation and worth what they paid. They should have all of their questions answered before the legal relationship ends.

If all attorneys could follow these simple guidelines the image of the attorney would improve greatly.

Marc L. Stolarsky, Esq.
Attorney
Cleveland, Ohio

Grandparent's Rights Podcast

If you missed me on WAKR this morning answering questions about grandparents rights, here is the podcast --

http://rayhorner.net/category/podcasts/

Let me know what you think.

Cleveland Magazine January 2009 Most Interesting People Article web link

Here is the web link to the article in Cleveland Magazine, January 2009, Most Interesting People:

http://www.clevelandmagazine.com/ME2/dirmod.asp?sid=E73ABD6180B44874871A91F6BA5C249C&nm=Arts+%26+Entertainment&type=Publishing&mod=Publications%3A%3AArticle&mid=1578600D80804596A222593669321019&tier=4&id=B46AF34977A74ECE8D77AAC9ECF5339C

House Bill 175: Humane Agents

Ohio Animal Law Legislative Update

In an effort to keep you apprised of legislation on animal issues in Ohio, I am sending you this email.

House Bill 175: Humane Agents introduced by Rep. Gerberry is to require a person to file proof of successful completion of training with the county recorder prior to being appointed as a humane society agent and to require the revocation of an appointment under certain circumstances.

The web link is -- http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_1754

Please let me know if you have any questions.

Marc

The van Bakeren Foundation

Here is a web link to The van Bakeren Foundation, a non-profit group to create a sustainable, low-cost, equitable health care system to benefit people animals and the environment as they relate to veterinary medicine.

www.vanBakerenFoundation.org

Here is an update on what I am doing --

Things are busy as usual for me. Here is an update on what is going on --


- I will be speaking on estate planning for non traditional couples at 9:15 a.m. on Sunday, April 26, at the West Shore Church, 20100 Hilliard Road in Westlake.

- I will be speaking on pet trusts at 1:00 p.m., April 30, at Legacy Place, 992 Vail Drive, in Twinsburg, Ohio.

- I will be on 1590 AM, WAKR, Akron radio, from 8:20 a.m. on May 1, May 15, June 12 and June 19 on the "Ask the Attorney" segment.

- Here is the web link to the article I wrote on digital assets that appeared in this weeks Cleveland Jewish News in their estate planning edition -- http://www.clevelandjewishnews.com/articles/2009/04/17/news/business/doc49e7403682b3f870226903.txt

- I'll be on American Idol next week (just kidding).

JUSTICES TO REVIEW WHETHER VIDEOS OF ANIMAL CRUELTY PROTECTED SPEECH

I though you might find this story important. It is not legislation, but it is about animal welfare --

JUSTICES TO REVIEW WHETHER VIDEOS OF ANIMAL CRUELTY PROTECTED SPEECH

The New York Times reports that the U.S. Supreme Court agreed yesterday to review the appeal of Robert Stevens, a Virginia man challenging his conviction for selling dog-fighting videos on First Amendment grounds. Stevens was sentenced to 37 months in prison under a 1999 federal law that criminalizes the creation or sale of depictions of cruelty to animals; although all 50 states ban animal cruelty itself, only the federal law targets depictions of it. Stevens’ lawyers argued that “there is no claim that the defendant was himself involved in acts of animal cruelty or was even present at their commission,” and that many of the acts in the videos were lawful in the jurisdictions where they were documented. In an amici brief urging the Court to take up the case, animal protection group the Humane Society argued that “gruesome depictions of animal mutilation” as targeted by the federal law should join the limited categories of speech that are beyond the protections of the First Amendment, such as obscenity, child pornography, and fighting words. Last summer the 3rd Circuit Court of Appeals overturned Stevens’ conviction, holding that animals aren’t affected by videos showing cruelty in the same way that minors suffer continuing harm by having images of child pornography in the marketplace.
For full story, see: http://www.nytimes.com/2009/04/21/us/21scotus.html?_r=1&ref=us
Fox News: http://www.foxnews.com/story/0,2933,517156,00.html
Columbus Dispatch: http://www.dispatchpolitics.com/live/content/national_world/stories/2009/04/21/copy/scotus_animals_ap_0421.ART_ART_04-21-09_A5_BDDKAAE.html?adsec=politics&sid=101
Washington Times: http://washingtontimes.com/news/2009/apr/21/animal-cruelty-case-advances/

Web Link to the Cleveland Jewish News Article on Digital Assets

Here is the web link to the Cleveland Jewish News Article --

http://www.clevelandjewishnews.com/articles/2009/04/17/news/business/doc49e7403682b3f870226903.txt

Ohio Animal Law Legislative Update For 2009 -- HB 79 Vicious Dogs" Bill

HB 79, "Vicious Dogs", recently introduced by Rep. Sears, "To remove pit bulls from the definition of 'vicious dogs' in state law". I have pasted it below and here is the web link --

http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_79


As Introduced

128th General Assembly
Regular Session
2009-2010

H. B. No. 79


Representative Sears

Cosponsors: Representatives Skindell, Stebelton, Wachtmann


A BILL

To amend section 955.11 of the Revised Code to remove pit bulls from the definition of "vicious dog" in state law.


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 955.11 of the Revised Code be amended to read as follows:

Sec. 955.11. (A) As used in this section:

(1)(a) "Dangerous dog" means a dog that, without provocation, and subject to division (A)(1)(b) of this section, has chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper, or harborer and not under the reasonable control of its owner, keeper, harborer, or some other responsible person, or not physically restrained or confined in a locked pen which that has a top, locked fenced yard, or other locked enclosure which that has a top.

(b) "Dangerous dog" does not include a police dog that has chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person while the police dog is being used to assist one or more law enforcement officers in the performance of their official duties.

(2) "Menacing fashion" means that a dog would cause any person being chased or approached to reasonably believe that the dog will cause physical injury to that person.

(3) "Police dog" means a dog that has been trained, and may be used, to assist one or more law enforcement officers in the performance of their official duties.

(4)(a) "Vicious dog" means a dog that, without provocation and subject to division (A)(4)(b) of this section, meets any either of the following:

(i) Has killed or caused serious injury to any person;

(ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog.

(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.

(b) "Vicious dog" does not include either of the following:

(i) A police dog that has killed or caused serious injury to any person or that has caused injury, other than killing or serious injury, to any person while the police dog is being used to assist one or more law enforcement officers in the performance of their official duties;

(ii) A dog that has killed or caused serious injury to any person while a person was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer of the dog.

(5) "Without provocation" means that a dog was not teased, tormented, or abused by a person, or that the dog was not coming to the aid or the defense of a person who was not engaged in illegal or criminal activity and who was not using the dog as a means of carrying out such activity.

(B) Upon the transfer of ownership of any dog, the seller of the dog shall give the buyer a transfer of ownership certificate that shall be signed by the seller. The certificate shall contain the registration number of the dog, the name of the seller, and a brief description of the dog. Blank forms of the certificate may be obtained from the county auditor. A transfer of ownership shall be recorded by the auditor upon presentation of a transfer of ownership certificate that is signed by the former owner of a dog and that is accompanied by a fee of twenty-five cents.

(C) Prior to the transfer of ownership or possession of any dog, upon the buyer's or other transferee's request, the seller or other transferor of the dog shall give to the person a written notice relative to the behavior and propensities of the dog.

(D) Within ten days after the transfer of ownership or possession of any dog, if the seller or other transferor of the dog has knowledge that the dog is a dangerous or vicious dog, he the seller or other transferor shall give to the buyer or other transferee, the board of health for the district in which the buyer or other transferee resides, and the dog warden of the county in which the buyer or other transferee resides, a completed copy of a written form on which the seller shall furnish the following information:

(1) The name and address of the buyer or other transferee of the dog;

(2) The age, sex, color, breed, and current registration number of the dog.

In addition, the seller shall answer the following questions, which shall be specifically stated on the form as follows:

"Has the dog ever chased or attempted to attack or bite a person? If yes, describe the incident(s) in which the behavior occurred."

"Has the dog ever bitten a person? If yes, describe the incident(s) in which the behavior occurred."

"Has the dog ever seriously injured or killed a person? If yes, describe the incident(s) in which the behavior occurred."

The dog warden of the county in which the seller resides shall furnish the form to the seller at no cost.

(E) No seller or other transferor of a dog shall fail to comply with the applicable requirements of divisions (B) to (D) of this section.

Section 2. That existing section 955.11 of the Revised Code is hereby repealed.

Passing Digital Assets in You Trust or Will

Passing Digital Assets Upon Your Death by Marc Stolarsky, Esq.
Q.: What are "digital asset"?
A.: These are intangible informational assets such as online bank accounts, stock holdings that exist entirely in digital media or the rights to an exclusively online business. There has been tremendous growth of these things and some have a very high monetary value. Also included are financial records, web sites, blogs, MySpace, Linkedin and Facebook accounts, address books, client lists, calendars, letters, diaries, other personal and business information, etc.

Q: Can these assets be passed to heirs in a will or trust?
A: Because the type and location of these assets change very quickly trying to list them in a will or a trust can be difficult: names and passwords change, new spin off businesses are created, e-stocks are created, purchased and sold, and email accounts are created and developed. Doing a new will or codicil every time you make a change might mean doing a new one document every few weeks which becomes confusing to the persons trying to figure out what the assets are and where they are located.

Q: How can I assure my digital assets are passed to the right person(s)?
A: The laws today are not clear as to how to pass digital assets because they have not kept pace with technological development. However, here are some good suggestions that may help limit confusion:
- Keep a master list on paper (not on the computer) of all online dealings including urls, user names and passwords with domain names, where they are registered, and when they need to be renewed to keep the businesses name and internet location.
- Make sure to keep it updated on a regular basis every time a change is made or simply check it once a month to see if it is current.
- Keep the information in a safe, secure place where you would keep your important business papers such as a fireproof safe or clearly labeled binder.
- Tell your attorney, executor, trustee and other people who are important to your estate plan where it is located in case they need to use it. Instruct them when it is permissible for them to use it and when it can be seen by others such as your heirs, such as if you should become incapacitated or incompetent or upon your death.

Q: What else can I do to make sure my wishes are carried out?
A: If you should have a serious illness or pass away, you should instruct a trusted person as to what to do with your digital assets, such as instructions for what to do with your online business transactions. Although these instructions may not be legally binding after your death, they will most likely be followed by a trusted person. You may request that these assets be destroyed, such as erased off a computer hard disk. However, keep in mind that there may be back-ups of that data that need to be destroyed also and that simply erasing something on a hard disk may just allow space for a new document.

Q: What types of things have become digital?
A: In today's technological age we may soon have electronic wills and trusts for testators to pass all their assets and express their wishes. At the moment you cannot write an electronic will, but states like Nevada are considering it and Ohio may not be that far off some day.
We already have automatic check transfers, paperless college courses with electronic tests, and electronic signatures. Many courts are going to paperless pleadings to save on the use of trees. In some cases real property transaction can take place with "eClosing" which permits the buyer to sign an electronic pad just once, the signature being affixed to each place automatically.

Q: Why aren't we using digital to keep all records today?
A: Although technology has advanced, we are still using antiquated methods to assure there no disputes. In the past it was thought that documents like a will must be written out on paper so that it could be validated, to prove that it actually existed, that it was signed and it was the testator's intent. This was especially important with wills because if there was a dispute the paper document could be examined carefully for authentication.

Ohio December 2008 Animal Legislative Update

December 2008 Animal Law Legislative Update
from Marc L. Stolarsky Law, LLC



Here are two bills recently introduced in the Ohio General Assembly in December 2008 --

SB 381, "Animal Feeding Operations" was introduced by Senator Stivers to require additional information to be considered when determining the impact on local infrastructure of a major concentrated animal feeding facility; to require an applicant for a permit to operate such a facility to complete all infrastructure improvements prior to applying for that permit; and to revise other requirements governing applications for permits to install and permits to operate.
Here is the web link to the bill: http://www.legislature.state.oh.us/bills.cfm?ID=127_SB_381

SB 383, "Animal Feeding Operations" was introduced by Senator Mumper to revise the Concentrated Animal Feeding Facilities Law.
Here is the web link to the bill: http://www.legislature.state.oh.us/bills.cfm?ID=127_SB_383

Ohio Pet Trust Available on My Web Site

Check out my web site at www.MLSLaw.Net to purchase an Ohio pet trust. I will receive it personally and you can call to ask me questions.

Marc

Podcast about Ohio pet trusts -- WAKR Radio Appearance

Here is a podcast from www.AkronNewsNow.com. It is my appearance on WAKR 1590 AM Akron, Ohio radio with Ray Horner. We we discussing Ohio pet trusts.

http://media.akronnewsnow.com/assets/2008/9/26/STOLARSKY1.MP3

National Chart: Pet and Animal Trust in the United States

State Statute Effective Based on
Wisconsin Wis. Stat Section 701.11 1969 None
Montana Mont. Code Ann. Sec. 72-2-1017 1993, Amend 1995 UPC 2-907
Arizona Ariz. Rev. Stat Section 14-2907 January 1, 1995 UPC 2-907
Colorado Colo. Rev. State Section 15-11-901 July 1, 1995 UPC 2-907
North Car N.C. Gen. State Section 36A-147 Oct 1, 1995 - Jan 1, 2006 UPC 2-907
New York N.Y. Est. Powers & Trust Law Section 7-8.1 1996 None
Alaska Alaska Stat. Section 13.12.907 1996 UPC 2-907
(Honorary trusts not enforceable for pet trusts)
Utah Utah Code Ann. Section 75-2-1001 July 1, 1998, Amend. 2003 UPC 2-907
Iowa Iowa Code Ann. Section 633A.2105 July1, 2000 None
Michigan Mich. Comp. Laws. Ann. Section 700.2722 April 1, 2000 UPC 2-907
Washington Wash. Rev. Code Sections 11.118.005 - .110 2001 None
Oregon Or. Rev. Stat. Section 128.308 2001 - Dec. 31, 2005 UPC 2-907
New Jersey N.J. State. Ann. Section 3B:11-38 July 10, 2001 None
Nevada Nevada State. Section 163.0075 October 1, 2001 None
Florida Fla. State. Ann Sec.737.116 Apr. 23, 2002 - Jn. 30, 2007 UPC 2-907
Kansas Kan. State. Ann. Section 58a-408 January 1, 2003 UTC 408
Wyoming Wyo. Stat. Ann. Section 4-10-409 July 1, 2003 UTC 408
New Mexico NM. Stat. Ann. Section 46A-4-408 July 1, 2003 UTC 408
Missouri Mo. Ann. Stat. Section 456.4-408 2004 UTC 408
Dist. of Col. D.C. Code Ann. Section 19-1304.08 March 10, 2004 UTC 408
Tennessee Tenn. Code Ann. Section 35-15-408 July 1, 2004 UTC 408
New Hamp. N.H. Rev. Stat. Ann. Sec. 564-B:4-408 October 1, 2004 UTC 408
Nebraska Neb. Rev. Stat. Sec. 30-3834 January 1, 2005 UTC 408
Illinois Ill. Comp. Stat. 76 ILCS 5/15.2 January 1, 2005 UPC 2-907
Hawaii Hawaii Stat. Sec. 560:7-501 June 24, 2005 UPC 2-907
Indiana Indiana Cod Sec. 30-4-2-18 July 1, 2005 None
Idaho Idaho Code Section 15-7-601 July 1, 2005 None
Maine Me. Rev. Stat. tit. 18-B, 408 July 1, 2005 UTC 408
RI R.I. Statutes Section 4-23-1 July 19, 2005 None
Arkansas Arkansas Code Sec. 28-73-408 September 1, 2005 UTC 408
* North Car N.C. Gen. Stat. Section 36C-4-408 January 1, 2006 UPC 2-907
* Oregon Or. Rev. Stat. Ann. Section 130.185 January 1, 2006 UTC 408
South Car. S.C. Code Section 67-7-408 January 1, 2006 UTC 408
Texas Tex. Prop. Code Section 112.037 January 1, 2006 None
S. Dakota S.D. Cod. Laws 55-1-21 - 55-1-22 February 22, 2006 UPC 2-907
Virginia Virginia Code Sec. 55-544.08 July 1, 2006 UTC 408
Penn Uniform Trust Act Sec. 7738 November 4, 2006 UTC 408
Ohio ORC Section 5804.08 January 1, 2007 UTC 408
Alabama Ala. Code Section 19-3B-408 January 1, 2007 UTC 408
* Florida Fla. State. Ann Sec. 736.0408 July 1, 2007 UTC 408
N. Dakota N.D. Cent. Code Sec. 59-12-08 August 1, 2007 UTC 408
Delaware Title 12, Sec. 12 Sec. 3555 August 1, 2008 None
California Cal. Prob. Code. Sec. 15212 January 1, 2009 None

* State with existing law passed new law

Courtesy of by Marc L. Stolarsky Law LLC

An Overview of Animal and Pet Trust in the United States

by Marc L. Stolarsky, Esq.

Introduction
As of this writing there are 40 of the United States that have passed laws permitting animal or pet trusts. Of these state laws, ten are based on some form of the Uniform Probate Code Section 2-907, eighteen are based on the Uniform Trust Code Section 408, and twelve borrow from both, but are not specifically based on either. In this article, I will review the relevant statues in the UPC and the UTC as well as the other states with pet trusts laws.
Uniform Probate Code Section 2-907
Prior to 1990, the Common Law took the position that animal trusts were invalid because a beneficiary could not be identified in definite and certain terms. The courts had held that a beneficiary must be a human being, an institution, or the like and not an animal. This is because a human beneficiary was necessary to hold the power to enforce the trust.
The issues of creating animal trusts were addressed in 1990, when the National Conference of Commissioners on Uniform State Laws (NCCUSL) met who then drafted the UPC and included the proposed animal trust code Section 2-907. This Section allowed the establishment of a valid and enforceable trust for "the care of a designated domestic or pet animal." The provision established a "presumption against a disposition . . . [for a pet's care] being merely precatory or honorary" and instead treated these trusts separately from other trusts established for lawful non-charitable purposes. The grantor's intent could be determined by the use of extrinsic evidence. To encourage individuals to serve as trustees of such trusts, the UPC Section reduced the administrative burdens placed on the management of animal trusts. Under Section 2-907, a court was authorized to appoint a trustee and were given the power to make other determinations necessary to carry out the testator's intent. An individual designated by the trust or appointed by the court could enforce the terms of the trust. The inclusion of language allowing for an "enforcer" of a trust negated the need for a guardian ad litem to protect the interests of the animal beneficiaries of an enforceable animal trust. If no more purpose exists the trust terminated when no living animal was covered by the trust. There was specific language authorizing the court to "reduce the amount of property transferred, if it determines that that amount substantially exceeds the amount required for the intended use." (Emphasis added) If there is a reduction in the property transferred, the property would pass as if it was unexpended trust property as directed in the trust, under a residuary clause in the testator's will, or to the heirs of the transferor.
Uniform Trust Code Section 408
In 2000, ten years after the first UPC pet trust statute was written, another group of trust scholars drafted the Uniform Trust Code that included an animal trust provision, Sections 408. The UTC Section 408 is much shorter then the UPC statute, and consists of three sections. Section 408(a) states that a trust may be created for the care of a living animal alive during the lifetime of the settlor and that the trust terminates when the animal(s) die.
Section 408(b) states that the trust may be enforced by a person appointed by the trust or a person appointed by the court and that any person with an interest in the welfare of the animal may request that the court to enforce the trust or appoint someone to enforce the trust or remove a person appointed. Also, while the animal will ordinarily be alive on the date the trust is created, an animal may be added as a beneficiary after that date as long as the addition is made prior to the settlor’s death. Animals in gestation, but not yet born at the time of the trust’s creation may also be covered by its terms. A trust authorized by this section may be created to benefit one designated animal or several designated animals. The person appointed by the court to enforce the trust should also be a person who has exhibited an interest in the animal’s welfare.
Section 408(c) states that an animal trust may not have an excessive amount of assets in it and the court may invade the trust if it deems it is excessive. However, it does not define what is excessive.
Comparing and Contrasting the UPC Section 2-907 and UTC Section 408
The UPC Section 2-907 and UTC Section 408 have both similarities and differences. Both codes declare that an animal trust is now enforceable by providing that either the trust creator or court may appoint a person to enforce the trust. Both the UPC and UTC also provide that the trust may last for the life of the animal, and that the court may order the diversion of funds if the trust property substantially exceeds the amount needed for the intended use.
However, the UPC and UTC differ in other areas. The UPC applies to "domestic or pet animals," which are subjective terms raising possible questions of interpretation. The UTC allows for the creation of a trust for any animal and the UTC provides that a trust for animals is to be treated like any other trust with respect to such issues as trustee reporting, which in this case would be to the trust enforcer.
Because the UTC dispenses with many of the formalities with respect to all trustees, the key difference between the UPC and UTC animal trust provisions in a state that has otherwise enacted the UTC is that the UPC does away with trustee reporting and the vital obligation to keep trust funds separate from other funds: "Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the fiduciary relationship of the trustee." However, remember that under the UTC, trusts for humans, animals, and charities are subject to the same rules of interpretation.
The UTC provides a better method for establishing a animal trust then the UPC for several reasons. First, the UTC overrides the rule of perpetuities by matching the allowable period of the trust to the length of the lifespan of the designated animal or animals. While the UPC also sets the duration of an animal trust to the measuring life of the designated animal, the UPC only provides for a single animal, while the UTC permits multiple animals to be covered by the trust. The UTC requires a trust to terminate only at the death of the last covered animal.
Second, the UTC provides greater enforceability to animal trusts than does the UPC which provides greater assurance for the pet owner. The provisions permit any person, not one specifically designated in the trust instrument as permitted by the UPC, to petition a court to evaluate whether or not the trust beneficiary or trustee is acting in accordance with the trust document. In addition, under the UTC, the trust beneficiary, who is the animal's caretaker, has rights of a qualified beneficiary, so that the trustee is held accountable for actions in administering a trust. In contrast, the UPC provides that a trustee has no filing, reporting, or other fiduciary responsibilities designed to hold a trustee accountable, unless specifically provided in the trust instrument.
Specific State Pet and Animal Statutes
States have been slow to adopt pet and animal trust statues although the laws they did pass have been similar to the UPC and UTC examples. From 1993 to 2002, nine states passed pet trusts laws based on the UPC 2-907, specifically Montana , Arizona , Colorado , North Carolina , Alaska , Utah , Michigan , Oregon and Florida . During the same time of 1993 to 2002, five states passed pet trust laws that were not based on any suggested code, specifically New York , Iowa , Washington State , New Jersey and Nevada .
Although UTC 408 was offered to the states in 2000, it was not until 2003 that any state enacted it. From 2003 to 2007, eighteen states based laws based on UTC Section 408, specifically Kansas , Wyoming , New Mexico , Missouri , District of Columbia , Tennessee , New Hampshire , Nebraska , Maine , Arkansas , South Carolina , Oregon , Virginia , Pennsylvania , Ohio , Alabama , Florida and North Dakota . After 2003, only four states passed pet trust laws modeled after the UPC 2-907, being Illinois , Hawaii , North Carolina and South Dakota .
From 2003 to 2007, only four states passed pet trust laws that are not based on either the UPC or UTC statute: specifically Indiana , Idaho , Rhode Island and Texas . Of all these statute, the most progressive and far-reaching has been the California law recently enacted on January 1, 2009. It includes animal organizations as interested parties of a pet trust and permits the following: (1) the trust may be enforced by the trustee, anyone appointed by the court or any person interested in the welfare of the animal or " . . . any nonprofit charitable organization that has as its principal activity the care of animals may petition the court regarding the trust . . . " (Emphasis added) and (2) "[a]ny beneficiary, any person designated by the trust instrument or the court to enforce the trust, or any nonprofit charitable corporation that has as its principal activity the care of animals may, upon reasonable request, inspect the animal, the premises where the animal is maintained, or the books and records of the trust." Time will tell if the California law becomes too difficult to legislate and if the courts there are bombarded with litigation or if it helps to administer the ultimate intent of the settlor.
Conclusion
While pet and animal trusts have been utilized by only a small percentage of the populace, they are important in assuring a valued companions are not left homeless or euthanized when their owners are gone. The future will most likely bring changes on the law that are lacking in many ways such as defining what animals may be covered, what are excessive amounts in the trust, who is an interested party and what happens to the offspring of the animals covered in the trust.


ENDNOTES

Marc L. Stolarsky is an attorney practicing Estate Planning probate and domestic relations in the northeast Ohio area.
Wisconsin law has an honorary trust law that allows pet trust, but they are not enforceable; Wis.Stat. Section 701.11.
William J. Bowe & Douglas H. Parker, Page on the Law of Wills Section 40.19 (1982).
Id.
The original UPC was drafted in 1969 as a joint project between NCCUSL and the Real Property, Probate and Trust Law Section of the American Bar Association. It has been revised several times, most recently in 2006.
Unif. Probate Code s 2-907(b) (amended 1993).
Gerry W. Beyer, "Pet Animals: What Happens When Their Humans Die?", 40 Santa Clara L. Rev. 617, 663-64 (2000).
Unif. Probate Code s 2-907(b).
Gerry W. Beyer, supra.
Unif. Probate Code s 2-907(c)(7).
Unif. Probate Code Section 2-907(c)(4).
In re Fouts, 677 N.Y.S.2d 699 (N.Y. Sup. Ct. 1998).
Unif. Probate Code s 2-907(b).
Unif. Probate Code Section 2-907(c)(6).
Id.; see also Section 2-907(c)(2).
UTC Section 408(a).
UTC Section 408(b).
UTC Section 408(b).
UTC Section 408(b).
UTC Section 408(b).
UTC Section 408(b).
UTC Section 408(c).
Unif. Probate Code s 2-907(b)(9); UTC Section 408(b).
Unif. Probate Code s 2-907(b)(2) and (b)(9); UTC Section 408(a) and (c).
Unif. Probate Code s 2-907(b).
UTC Section 408(a).
UPC Section 2-907(c)(5).
UTC Section 408(a).
UTC Section 408(a).
UTC Section 408(a).
Susan Albert, "Pet Trusts: The Uniform Trust Code Gives Enforceability a New Bite", New Hampshire Bar Journal, Winter 2006, found online at http://www.nhbar.org/publications/display-journal-issue.asp? id=314.
Uniform Trust Code s110(c) (2000).
Unif. Probate Code s 2-907(b)(6).
Mont. Code Ann. Sec. 72-2-1017.
Ariz. Rev. Stat. Section 14-2907.
Colo. Rev. State Section 15-11-901.
N.C. Gen. State Section 36A-147 was law from October 1, 1995 to Jan 1, 2006 and on January 1, 2006 enacted N.C. Gen. Stat. Section 36C-4-408, both based on UPC Section 2-907.
Alaska Stat. Section 13.12.907.
Utah Code Ann. Section 75-2-1001.
Mich. Comp. Laws. Ann. Section 700.2722.
Or. Rev. Stat. Section 128.308 was law 2001 to Dec. 31, 2005 based on the UPC 2-907; Or. Rev. Stat. Ann. Section 130.185 was enacted January 1, 2006 was based on UTC Section 408.
Fla. State. Ann Sec.737.116 was law Apr. 23, 2002 to June 30, 2007 based on UPC 2-907; Fla. State. Ann Sec. 736.0408 was enacted July 1, 2007 based on UTC Section 408.
N.Y. Est. Powers & Trust Law Section 7-8.1.
Iowa Code Ann. Section 633A.2105.
Wash. Rev. Code Sections 11.118.005 through .110.
N.J. State. Ann. Section 3B:11-38.
Nevada State. Section 163.0075.
Kan. State. Ann. Section 58a-408.
Wyo. Stat. Ann. Section 4-10-409.
NM. Stat. Ann. Section 46A-4-408.
Mo. Ann. Stat. Section 456.4-408.
D.C. Code Ann. Section 19-1304.08.
Tenn. Code Ann. Section 35-15-408.
N.H. Rev. Stat. Ann. Sec. 564-B:4-408.
Neb. Rev. Stat. Sec. 30-3834.
Me. Rev. Stat. tit. 18-B, 408.
Arkansas Code Sec. 28-73-408.
S.C. Code Section 67-7-408.
Or. Rev. Stat. Section 128.308 was effective 2001 - Dec. 31, 2005 based on UPC 2-907; Or. Rev. Stat. Ann. Section 130.185 effective January 1, 2006 is based on UTC Section 408.
Virginia Code Sec. 55-544.08.
Uniform Trust Act Sec. 7738.
ORC Section 5804.08.
Ala. Code Section 19-3B-408.
Fla. State. Ann Sec.737.116 was effective Apr. 23, 2002 - June 30, 2007 and based on UPC 2-907; Fla. State. Ann Sec. 736.0408 effective July 1, 2007 was based on UTC Section 408.
N.D. Cent. Code Sec. 59-12-08.
Ill. Comp. Stat. 76 ILCS 5/15.2.
Hawaii Stat. Sec. 560:7-501.
N.C. Gen. State Section 36A-147 was effective October 1, 1995 - Jan 1, 2006 and based on UPC 2-907; N.C. Gen. Stat. Section 36C-4-408 enacted on January 1, 2006 was based on UPC 2-907.
S.D. Cod. Laws 55-1-21 - 55-1-22.
Indiana Cod Sec. 30-4-2-18.
Idaho Code Section 15-7-601.
R.I. Statutes Section 4-23-1.
Tex. Prop. Code Section 112.037.
Cal. Prob. Code Section 15212(c).
Cal. Prob. Code Section 15212(f).

Cocoa mulch can hurt or kill your pet!

Over the weekend the doting owner of two young lab mixes purchased Cocoa Mulch from Target to use in their garden. They loved the way it smelled and it was advertised to keep cats away from their garden. Their dog Calypso decided that the mulch smelled good enough to eat and dev oured a large helping. She vomited a few times which was typical when she eats something new but wasn't acting lethargic in any way.

The next day, Mom woke up and took Calypso out for her morning walk. Half way through the walk, she had a seizure and died instantly.

Although the mulch had NO warnings printed on the label, upon further investigation on the company's website, this product is HIGHLY toxic to dogs and cats. Cocoa Mulch is manufactured by Hershey's, and they claim that 'It is true that studies have shown that 50% of the dogs that eat Cocoa Mulch can suffer physical harm to a variety of degrees (depending on each individual dog). However, 98% of all dogs won't eat it.'

This Snopes site gives the following information: http://www.snopes.com/critters/crusader/cocoamulch.asp

Cocoa Mulch, which is sold by Home Depot, Foreman's Garden Supply and other Garden supply stores, contains a lethal
ingredient called 'Theobromine'. It is lethal to dogs and cats. It smells like chocolate and it really attracts dogs. They will ingest this stuff and die. Several deaths already occurred in the last 2-3 weeks. Just a word of caution, check what you are using in your gardens and be aware of what your gardeners are using in your gardens.

Theobromine is in all chocolate, especially dark or baker's chocolate which is toxic to dogs. Cocoa bean shells contain potentially toxic quantities of theobromine, a xanthine compound similar in effects to caffeine and theophylline. A dog that ingested a lethal quantity of garden mulch made from cacao beanshells developed severe convulsions and died 17 hours later. Analysis of the stomach contents and the ingested cacao bean shells revealed the presence of lethal amounts of theobromine.

PLEASE GIVE THIS THE WIDEST DISTRIBUTION!!!

Pet Trusts in Ohio

Ohio Animal Trusts
by Marc L. Stolarsky, M.A., J.D.

1. The Role of Animals Have Evolved
Americans keep a huge number of pets; more than 68 million dogs and 73 million cats, plus horses, birds and a variety of reptiles, rodents, fish and other mammals. With the increase in numbers, the traditional uses of animals as only a source of food and mere tools to use to increase productivity have evolved over time. The increase of animals as companions has been significant.
Not only are pets friends, they may also help in so many other ways, as well as having tremendous therapeutic effects when they bond emotionally. Pet owners' satisfaction with their pets derives from a human-animal bond, beneficial to both owner and pet in many ways. It extends beyond just companionship, and becomes a symbiotic relationship that enhances quality of life. These benefits can be emotional, psychological, physical, and spiritual.

2. Animals As Property and Not Beneficiaries
Unfortunately in the past, the intent of well meaning animal owners, who in post-mortem gifted some or all of their assets to their pets, have been foiled by the courts that determined no enforceable Trust could be created for the benefit of a specific animal.
People who left money to their pets were considered to be of unsound mind for just that reason and their testamentary document voided. News stories of some famous personality leaving large sums of money to their pets have been reported as oddities and something people chuckle over as being ridiculous. Such stories like that of Leona Helmsley leaving twelve million dollars to her Maltese Trouble is considered to be a per se' sign of a mental disorder.
At common law in the United States, a person could not create an effective trust for an animal because it required a clearly identifiable beneficiary. An identifiable beneficiary was necessary because there had to be someone who would enforce the trust, i.e. someone to bring a suit in court if the trustee was using assets for a purpose outside those outlined in the trust. Animals were and largely are still considered to be property in this country, with few legal rights to assert.

3. Honorary Trusts
Before animal trusts could be created, many states permitted what were called "honorary trusts". In establishing an honorary trust a testator could leave assets to a person or institution for the benefit of an animal. It was termed honorary because the trustee did not have any legal obligation to use the assets for the animal and could use the assets for any purpose they chose, even their own selfish enjoyment.
Recognition of honorary trusts occurred in Great Britain in the 19th Century when court issued their opinion in In re Dean, 41 Ch. D. 552 (1889). Here the decedent had established a testamentary trust for the care of his horses and dogs, ordering the trustee to pay a fixed amount each year for the animals' lifetimes, but for no longer than fifty years. The court held that since the gift was for the benefit of specific animals rather than for animals in general, it failed to constitute a valid charitable gift. Nonetheless, the court upheld the gift as an honorary trust, rejecting the contention that the trust was invalid because it lacked a human beneficiary who could enforce its provisions, and ultimately determined that the gift was not "obnoxious to the law."
In the United States, the Restatement of the Law of Trusts first mentioned honorary trusts in 1935, when it stated that there could be trusts for a "specific" non-charitable purpose". In Section 124 of the Restatement, it stated that if property is transferred for a specific non-charitable purpose a trust was not created, but it did give the individual it was transferred to the power to apply the assets to the outlying purpose.
In a 1950 Ohio case, George P. Searight passed away, leaving $1,000 for the benefit of his dog Trixie, but stipulated his friend Florance Hand would be paid 75 cents a day for the animal's care until she passed away. The Court held that when a trust is created to benefit an animal, but no human beneficiary is capable of enforcing the trust, an honorary trust is created.
In 1957, in the Second Restatement of Trusts, the new Section 124 was almost identical to the first Restatement Section 124, but added to it by acknowledging that an honorary trust could be created with gifts for the benefit of animals. Included in the comments was a fact pattern dealing specifically with how an animal honorary trust could be created. The Second Restatement Section 124 was the impetus for States to adopt honorary trust legislation.
In 2003, Section 47 of the Third Restatement was very much like the first two versions of Section 124 preceding it. Section 47 contained a similar fact pattern like the Second Restatement describing how an animal honorary trust works.
In another important Ohio case in 2004, in Beverly Walkecker, et al. v. Erie County Humane Society , the decedent Ruth Ann Lovett died on December 24, 1996. She had already signed a Will bequeathing $325,000 in assets to the Erie County Humane Society with the stipulation that they take care of her Siamese cat Sinbad for as long as it lived. Ten weeks after her death the Humane Society euthanized the cat, without even attempting to find it a home. The Ohio Supreme Court determined that an honorary trust was created and that it would terminate when the purpose of the trust ended. Here in Walkecker, the Court was again showing that individuals had the right to create an honorary trust, but not an animal trust.
Honorary trusts have a major flaw: because animals were considered to be property under the law, the assets have to pass to a person for the animal's benefit. The person who then receives the assets are on their honor to use the assets for the intended purpose, but have no legal obligation to do so. If they take the assets for their own use and enjoyment, the courts have no power intervene.
In addition, there may be income tax problems with honorary trusts that could have been avoided using other means.
Whatever the result, drafting an honorary trust that had such a tenuous existence was a bad idea. If a trust failed for any of the above or other reasons, the courts were petitioned to determine if the assets contained within it reverted back to the estate and therefore to the heirs of the deceased. Also, if a trust was poorly written and left some doubt as to what its purpose was, a court could determine that it is not an honorary trust and void the entire document.

4. Uniform Probate Code and Uniform Trust Code
Looking back into the history of animal trust legislation, both the Uniform Probate Code and the Uniform Trust Code dominate the landscape. Drafted by a large pool of trust legal scholars chosen from all over the United States, these are comprehensive updates of state trust codes that attempt to close the gaps in our laws.
The Common Law prior to 1990 took the position that animal trusts were invalid because for one, a beneficiary could not be identified in definite and certain terms. The courts held that a beneficiary must be a human being, an institution, or the like and not an animal. This is because a human beneficiary was necessary to hold the power to enforce the trust. Under the law, an animal was not capable of forcing the trustee to administer the trust and provide distributions in accordance with the settlor's directions.
The issues of creating animal trusts were addressed in 1990, when the National Conference of Commissioners on Uniform State Laws (NCCUSL) revised the UPC and included the proposed animal trust code Section 2-907. This was presented as an "optional" section labeled as such because the idea of recognizing enforceable animal trusts was apparently viewed as too radical for states considering adopting the UPC. This Section allowed the establishment of a valid and enforceable trust for "the care of a designated domestic or pet animal." The provision established a "presumption against a disposition . . . [for a pet's care] being merely precatory or honorary" and instead treated these trusts separately from other trusts established for lawful non-charitable purposes. The grantor's intent could be determined by the use of extrinsic evidence. To encourage individuals to serve as trustees of such trusts, the UPC Section reduced the administrative burdens placed on the management of animal trusts. Under Section 2-907, a court was authorized to appoint a trustee and were given the power to make other determinations necessary to carry out the testator's intent. An individual designated by the trust or appointed by the court could enforce the terms of the trust. The inclusion of language allowing for an "enforcer" of a trust negated the need for a guardian ad litem to protect the interests of the animal beneficiaries of an enforceable animal trust. If no more purpose exists, "the trust terminates when no living animal is covered by the trust." There is specific language authorizing the court to "reduce the amount of property transferred, if it determines that that amount substantially exceeds the amount required for the intended use." If there is a reduction in the property transferred, the property would pass as if it was unexpended trust property as directed in the trust, under a residuary clause in the testator's will, or to the heirs of the transferor.
In 2000, ten years after the first UPC was written, another group of trust scholars drafted the Uniform Trust Code that included an animal trust provision, Sections 408 and 409. The UPC Section 2-907 and UTC Section 408 and 409, have both similarities and differences. Both codes declare that an animal trust is now enforceable by providing that either the trust creator or court may appoint a person to enforce the trust. Both the UPC and UTC also provide that the trust may last for the life of the animal, and that the court may order the diversion of funds if the trust property substantially exceeds the amount needed for the intended use.
However, the UPC and UTC differ in other areas. The UPC applies to "domestic or pet animals," which are subjective terms raising possible questions of interpretation. The UTC allows for the creation of a trust for any animal and the UTC provides that a trust for animals is to be treated like any other trust with respect to such issues as trustee reporting, which in this case would be to the trust enforcer.
Because the UTC dispenses with many of the formalities with respect to all trustees, the key difference between the UPC and UTC animal trust provisions in a state that has otherwise enacted the UTC is that the UPC does away with trustee reporting and the vital obligation to keep trust funds separate from other funds: "Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the fiduciary relationship of the trustee." However, remember that under the UTC, trusts for humans, animals, and charities are subject to the same rules of interpretation.
The UTC provides a better method for establishing a animal trust then the UPC for several reasons. First, the UTC overrides the rule of perpetuities by matching the allowable period of the trust to the length of the lifespan of the designated animal or animals. While the UPC also sets the duration of an animal trust to the measuring life of the designated animal, the UPC only provides for a single animal, while the UTC permits multiple animals to be covered by the trust. The UTC requires a trust to terminate only at the death of the last covered animal.
Second, the UTC provides greater enforceability to animal trusts than does the UPC, providing greater assurance for the pet owner. The provisions permit any person, not one specifically designated in the trust instrument as permitted by the UPC, to petition a court to evaluate whether or not the trust beneficiary or trustee is acting in accordance with the trust document. In addition, under the UTC, the trust beneficiary, who is the animal's caretaker, has rights of a qualified beneficiary, so that the trustee is held accountable for actions in administering a trust. In contrast, the UPC provides that a trustee has no filing, reporting, or other fiduciary responsibilities designed to hold a trustee accountable, unless specifically provided in the trust instrument.
In the last fifteen years, there are 41 States in this country that have laws permitting animal trust. Specifically they are Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, Wyoming. Of the states that now have animal trust statutes, nine are based on the 2-907 of the Uniform Probate Code, eighteen are based on the Section 408 of the Uniform Trust Code and eleven are not based on either, but have borrowed generously from both codes.
Of these States, sixteen of them permit trusts for the care of a designated domestic or pet animal and the animal's offspring. These are Alaska, Arizona, California, Colorado, Hawaii, Illinois, Michigan, Missouri, Montana, New Mexico, New York, North Carolina, South Dakota, Tennessee, Utah and Wisconsin. This is significant so that the offspring of these animals will not have to be euthanized or go homeless.

5. Ohio Revised Code Section 5804.08
Based on UTC Section 408, the Ohio Revised Code Section 5804.08, "Trust for Care of Animal", was passed by the General Assembly in 2006 and enacted in 2007 as part of the modified Unified Trust Code introduced by Rep. Wagoner as S.B. 416. The Ohio law as it reads today states the following:
Sec. 5804.08 Trust for Care of Animals
(A) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.
(B) A person appointed in the terms of a trust or, if no person is so appointed, a person appointed by the court may enforce a trust authorized by this section. A person having an interest in the welfare of an animal that is provided for care by a trust authorized by this section may request the court to appoint a person to enforce the trust or to remove a person appointed.
(C) The property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use may be distributed to the settlor if then living or to the settlor's successors in trust.

Pursuant to O.R.C. Section 5804.08(A), a trust may be inter vivos (created during the life of the pet owner) or testamentary (created at time of death), such as by the Last Will and Testament of the pet owner. The life of the trust will be only as long as the animal or animals live that it is created to benefit. Therefore, in Ohio the trust will not continue to support the offspring of that animals.
In O.R.C. Section 5804.08(B), a person may be appointed as trustee of the animal trust. If no one is appointed, the court has authority to appoint a trustee to serve in that capacity. The court can be petitioned by a person with an interest in the animal including the caregiver of the animal to have a Trustee appointed or have them removed. This concept has its roots in the "Uniform Guardianship and Protective Proceedings Act", which originated the concept of permitting a person with a demonstrated interest in the animal's welfare to petition the court. It's main purpose was to allows a person interested in the welfare of a ward or protected person to file petitions on behalf of the ward or protected person and now that includes those with interests in animals.
In O.R.C. Section 5804.08(C), the property placed in the trust may only be used for the stated purpose of the trust. However, if the property placed in the trust is excessive, the court has authority to distribute the property to the creator of the trust, or to the heirs of the creator of the trust. The court would most likely look at the needs of the animal and the intent of the trust creator and determine the amount of property is necessary for the animal.
While O.R.C. Section 5804.08 is a breakthrough, there are potential problems that should be addressed. The statute should state that the animal trusts are "valid and enforceable." That way the statute would distinguish itself from honorary trust statutes that are not really valid trusts because they are not enforceable in court. It would also imply that animal trusts are no different than express trusts and are subject to the same fiduciary requirements.
The Ohio law should also include a provision, similar to the Washington animal trust statute , which allows for identification of the animals to be covered by the trust. The Washington statute states that the animals "may be individually identified, or may be identified in such other manner that they can be readily identified." The inclusion of such language would help prevent a potential challenge to the trust on the grounds that the "beneficiaries" are not named or described by breed or type. Thus, if a trust document states that "property is to be used for the care of my 'pets' or my 'dogs' " an heir might argue that the trust is too vague or that the beneficiaries are not ascertainable. Including the above language would limit the effectiveness of such an argument by giving the court some flexibility in determining the animals to be covered, and would compensate for vague or incomplete drafting.
The statute should also include language allowing for liberal construction of planning documents and should allow extrinsic evidence to help discern the pet owner's intent. The UPC Section 2-907 includes such language , and attempts to bring any possible animal trust document under its provisions.
The statute's duration should not be limited and should provide that it continue for the offspring of those animals that exist when the trust is created. That way these animals will be assured proper care so long as the trust assets are exist.
Although the general policy of preventing waste justifies the court authority to disallow excessive animal trust funding, in many instances the costs outweigh the benefits. Allowing courts to reduce the amount of trust property not only guarantees a challenge by the pet owner's heirs, but also guarantees a reduction of trust property if a particular judge is not fond of the idea of animal trusts. This is a handy weapon which all challengers may rely on and gives judges who frown on the notion of trusts for animals a sound legal reason for attacking such trusts.
The statute should provide, much like UPC section 2-907, an incentive for a trustee to serve by reducing the amount of administrative duties and requirements. As suggested earlier, including such a provision may be construed as hampering the legitimacy of animal trusts by giving them a status different from that of express trusts. However, this potential disadvantage is far outweighed by this huge advantage: the reduced likelihood that a named trustee will attempt to avoid the responsibility of enforcing the terms of the trust. Thus, a provision limiting the trustee's duties will further the goal of carrying out the intent of the pet owner. An effective animal trust depends on a trustee who carries out the terms, and it makes sense to give him an incentive to accept the job.
The statute should employ language similar to that of UPC section 2-907(b)(6), which states that "except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the existence of the fiduciary relationship of the trustee."
These are some suggestions and are certainly not all issues that need to be addressed by drafters of legislation. However, if they use these suggestions it would assist those creating animal trust to effectuate their intent.

6. Tax Issues With Animal Trusts
While this work will not present a complete review of all tax issues facing drafters of animal trusts, it is important to at least touch on some of the more relevant tax issues for animal trust. Keep in mind this writer is not and has no desire to be a CPA.
For the calculation of federal estate taxes, any amount passing to an animal trust by reason of the settlor's death will generally be included by the Internal Revenue Service in the gross taxable estate. Under Revenue Ruling 78-105 , the IRS has ruled that no portion of the amount passing to a valid trust for the lifetime benefit of a pet qualifies for the charitable estate tax deduction, even if the remainder beneficiary is a qualifying charity. Trust creators, however, depending on how much a tax burden will result, should consider how the estate taxes attributable to such a trust will be paid. The proceeds from life insurance is an excellent way to pay estate taxes.
Regarding taxation of the income of trust assets, Revenue Ruling 76-486 , provides that if a trust for the benefit of an animal is valid under state law, then the trust itself will be subject to income taxation.
Who is responsible for paying trust income taxes? An animal is not a beneficiary recognized by the IRS and, therefore, cannot be taxed. A caretaker of the animal could not be charged with the tax liability of trust income because the caretaker serves only as an agent of the animal and does not consume the distributions for his or her own benefit (similar to a court appointed guardian of a minor or incapacitated person). The Trustee must pay the taxes of the Trust, since by law he is the owner of the Trust assets and that is his duty. He has a right of reimbursement for the Trust funds he holds. Under some circumstances he may be personally liable for the tax, for example, if he makes other payments and does not retain enough to cover them.
In general, a trust is taxed on the income it accumulates. Trust beneficiaries are taxed on their distributions. The trust itself benefits when distributions are made because income distributions decrease the trust's tax liability. Another benefit of distributions is that the beneficiaries are taxed at a lower rate than are trusts, thus making the assets worth more in the hands of the beneficiary than in the hands of the trust.
If anyone appointed by the trust, such as a trustee or caretaker, receives some stipend or salary, the trust can deduct that amount. If the that person is considered the beneficiary, then under IRC's 661, the trust is entitled to deduct the amount of "distributable net income" paid out to them.
If a trust official is receiving some compensation for services, they in turn are required to recognize this amount on his or her tax return.

7. Trusts vs. Wills For Animal Welfare
A Trust is superior to a Will when passing assets for the benefit of an animal for several reasons. For one thing, a trust can be more specific as to how the assets are distributed, when, to whom and how. A trust can designate a trustee who becomes responsible for carrying out the explicit tenants of the trust. In addition, it can name a pet manager to find a good home for the animal; a caretaker who walks, feeds, cleans and cares for the animal; a veterinarian who is familiar with the pets history; and can require it be feed a certain food, exercised in any manner or way, given acres of space to run or sleep on a bed silk sheets.
A Will is much more rigid then a trust, bequeathing assets to person or institution, and requesting that the use assets for the benefit of an animal. In addition, a Will must go through probate, increasing costs, becoming public record and increasing the time that the testator's wishes are in limbo.

Conclusion
O.R.C. Section 5804.08 has created an easy and affordable way for animal owners who are diligent and dutiful to provide for their animal companions once they are no longer able. It can take effect when the owner becomes ill or when they pass away, but can always detail every single item of their handling. While there are flaws in the Ohio law, a trust can be written to assure that an animal companion is taken care of so that it can lead a happy and healthy life before and after its master is gone.


ENDNOTES

ENDNOTES

Marc L. Stolarsky is an attorney practicing Estate Planning in the northeast Ohio area. He earned his Master of Arts From Bowling Green State Unverstity and his Juris Doctor from Cleveland-Marshall College of Law.

J. Animal L. & Ethics 21, Journal of Animal Law & Ethics, May, 2007, 21 Mediating Animal Law Matters, Journal of Animal Law and Ethics; Kathy Hessler.

Pets are an important part of the lives of many individuals. A recent study found that 73 percent of dog owners and 65 percent of cat owners consider their companion animals to be akin to a child or other close family member, and many treat their pets as a member of their immediate family. American Pet Products Manufacturers, 2001-02 APPMA National Pet Owners Survey (2002) (reporting data from 2000).

A survey by the American Pet Products Manufacturers Association found that 84% of pet owners said pets make their family and home life physically and emotionally healthier. See "Pets Bring Out the Best in Humans" (April 26, 2006), found online at http://www.themonroetimes.com/f0424aug.htm.

77 Pa. B.A. Q. 107, Pennsylvania Bar Association Quarterly, July, 2006, "What the General Practitioner Needs to Know about Pennsylvania Animal Law, Personal and Estate Planning For Pennsylvanians Owning Pets", Neil E. Hendershot, Dauphin County.

See Gerry W. Beyer, "Pet Animals: What Happens when their Humans Die?", 40 Santa Clara L. Rev. 617 (2000).

Betty White was reported have a will that leaves five million dollars to her pets. "Betty White Leaves $5M to Her Pets," San Antonio Star, Nov. 4, 1990, at 25.

"Estate planning: Not just for Leona's dog, Linda Lombard; Associated Press, Ohio Lucky dog!", Cincinnati Post, by Linda Lombard, September 22, 2007.

Kristina A. Hancock, Chair of the animal law committee of the ABA's Tort Trial & Insurance Practice Section.

In re Dean, 41 Ch. D. 552 (1889).

Id. at 623.

Id.

The Restatement of Trusts Section 124 states: "Where the owner of property transfers it upon an intended trust for a specific non-charitable purpose and there is no definite or definitely ascertainable beneficiary designated, no trust is created; but the transferee has power to apply the property to the designated purpose, unless he is authorized by the terms of the intended trust so to apply the property beyond the period of the rule against perpetuities, or the purpose is capricious."; Note: In Ohio as in many other States, the rule against perpetuities is not an issue with animal trusts. In Ohio O.R.C. Section 2131.08(B) and (C) save the trust if the animal dies within the 21 year period. O.R.C. Section 2131.09(B) abolished the RAP when the trust instrument so provides. Also, the new O.R.C. Section 5804.09 supplies its own rule on duration.

Id.

In re Searight's Estate v. Miller (1950) 87 Ohio App. 417.

Id.

Restatement (Second) of Trusts Section 124; In part the example states: A bequeaths his dog, Fido, to B together with the sum of $1000 "in trust" to use the money for the support of the dog for twenty years. B cannot be compelled to use the money for supporting the dog, but he has power to use the money for this purpose and incurs no liability by doing so. If B refuses or neglects to support the dog, he holds the money upon a resulting trust for A's estate." Id.

Missouri, Mo. Rev. Stat. Section 456.050; California, Cal. Prob. Code Section 15212; Tennessee, Tenn. Code Ann. Section 35-50-118 (2002); and Wisconsin Wis. Stat. Ann. Section 701.11 (West 2002)

Restatement (Third) of Trusts Section 47.

Beverly Walkecker, et al. v. Erie County Humane Society (April 12, 2004) 810 N.E.2d 968, No. 2004-0607, Court of Appeals Case No. E-03-022, Trial Court Case No. 97-1-019.

See Rev. Rul. 76-486, 1976-2 C.B. 192.

For further discussion of these concepts, see In re Searight's Estate, 95 N.E.2d 779 (Ohio App. 1950); According to Section 124 of Restatement 2d, Trusts, where property is transferred in trust for a noncharitable purpose and there is no definite or definitely ascertainable beneficiary designated (as for the care of animals), then no trust is created. However, the transferee has the power, if exercised, to use the property for the designated purpose. The "trust" is subject to the rule against perpetuities. It may not be held for a purpose extending beyond the lives in being plus twenty-one years.

Jennifer R. Taylor, "A "Pet" Project for State Legislatures: The Movement Toward Enforceable Pet Trusts in the Twenty-First Century", 13 Quinnipac Prob. L.J. 419, 420 (1999).

William J. Bowe & Douglas H. Parker, Page on the Law of Wills Section 40.19 (1982).

Id.

The 1990 version of the UPC section 2-907 states:
(a) Honorary Trusts. A trust for a noncharitable corporation or unincorporated society or for a lawful noncharitable purpose may be performed by the trustee for [21] years but no longer, whether or not there is a beneficiary who can seek the trust's enforcement or termination and whether or not the terms of the trust contemplate a longer duration.
(b) Trust for Pets. Subject to this subsection, a trust for the care of a designated domestic or pet animal and the animal's offspring is valid.
Except as expressly provided otherwise in the trust instrument:
(1) No portion of the principal or income may be converted to the use of the trustee or to any use other than for the benefit of a covered animal.
(2) The trust terminates at the earlier of 21 years after the trust was created or when no living animal is covered by the trust.
(3) Upon termination, the trustee shall transfer the unexpended trust property in the following order:
(i) as directed in the trust instrument;
(ii) if the trust was created in a nonresiduary clause in the transferor's will or in a codicil to the transferor's will, under the residuary
clause in the transferor's will; and
(iii) if no taker is produced by the application of subparagraph (i)or (ii), to the transferor's heirs under Section 2-711.
(4) For the purposes of Section 2-707, the residuary clause is treated as creating a future interest under the terms of a trust.
(5) The intended use of the principal or income can be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to it by an individual.
(6) Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds,
appointment, or fee is required by reason of the existence of the fiduciary relationship of the trustee.
(7) A governing instrument must be liberally construed to bring the transfer within this section, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.
(8) A court may reduce the amount of the property transferred, if it determines that that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust
property under subsection (b)(3).
(9) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee, if required to assure that the intended use is carried out and if no successor trustee is designated in the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A court may also make such other orders and determinations as shall be advisable to carry out the intent of the transferor and the purpose of this section.

Unif. Probate Code s 2-907(b) (amended 1993).

Gerry W. Beyer, "Pet Animals: What Happens When Their Humans Die?", 40 Santa Clara L. Rev. 617, 663-64 (2000).

Unif. Probate Code s 2-907(b).

Gerry W. Beyer, supra.

Unif. Probate Code s 2-907(c)(7).

Unif. Probate Code Section 2-907(c)(4).

In re Fouts, 677 N.Y.S.2d 699 (N.Y. Sup. Ct. 1998).

Unif. Probate Code s 2-907(b).

Unif. Probate Code Section 2-907(c)(6).

Id.; see also Section 2-907(c)(2).

UTC Section 408 states the following:
(a) Creation and termination. A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.
(b) Enforcement.--A trust authorized by this section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
(c) Limitation.--Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the trust instrument, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

Also, UTC Section 409, "Noncharitable Trusts", states the following:
(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than 21 years.
(2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court.
(3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

UPC Section 2-907(c)(5).

Susan Albert, "Pet Trusts: The Uniform Trust Code Gives Enforceability a New Bite", New Hampshire Bar Journal, Winter 2006, found online at http://www.nhbar.org/publications/display-journal-issue.asp? id=314.

Uniform Trust Code s110(c) (2000).

Alabama, Ala. Code § 19-3B-408; Alaska, Alaska Stat. § 13.12.907; Arizona, Ariz. Rev. Stat. § 14-2907 (2002); Arkansas, Arkansas Code § 78-73-408; California, Cal. Prob. Code § 15212; Colorado, Colo. Rev. Stat. § 15-11-901; District of Columbia; Florida, Fla. Stat. Ann. § 737.116; Hawaii, Hawaii Stat. § 560:7-501; Idaho, Idaho Code § 15-7-601; Illinois, Ill. Comp. Stat. 760 ILCS 5/15.2; Indiana, Indiana Code § 30-4-2-18; Iowa, Iowa Code Ann. § 633A.2105; Kansas, Kan. Stat. Ann. § 58a-408; Maine, Me. Rev. Stat. Ann. tit. 18-B, 408; Michigan, Mich. Comp. Laws Ann. § 700.2722; Missouri, Mo. Ann. Stat. § 456.4-408; Montana, Mont. Code Ann. § 72-2-1017; Nebraska, Neb. Rev. Stat. § 30-3834; Nevada, Nevada Stat. § 163.0075; New Hampshire, N.H. Rev. Stat. Ann. § 564-B:4-408; New Jersey, N.J. Stat. Ann. § 3B:11-38; New Mexico, N.M. Stat. Ann. § 46A-4-408; New York, N.Y. Est. Powers & Trusts Law § 7-8.1; North Carolina, N.C. Gen. Stat. § 36A-147; North Dakota, N.D. Cent. Code § 59-12-08; Ohio, ORC § 5804.08 Trust for care of animal; Oregon, Or. Rev. Stat. § 128.308; Pennsylvania, § 7738. Trust for care of animal - UTC 408; Rhode Island, R.I. Statutes § 4-23-1; South Carolina, S.C. Code § 67-7-408; South Dakota, S.D. Codified Laws §§ 55-1-21 & 55-1-22; Tennessee, Tenn. Code Ann. § 35-15-408; Texas, Tex. Prop. Code § 112.037; Utah, Utah Code Ann. § 75-2-1001; Virginia, Virginia Code § 55-544.08; Washington, Wash. Rev. Code §§ 11.118.005 -.110; Wisconsin, Wis. Stat. § 701.11; Wyoming, Wyo. Stat. Ann. § 4-10-409. This list is as of February 12, 2008, pursuant to www.professorbeyer.com/Articles/Animal_Statutes.htm .

8 Alaska Stat. Section 13.12.907 (Michie 1998); Ariz. Rev. Stat. Ann. Section 14-2907 (West 1995); Cal. Prob. Code Section 15212 (West Supp. 2000); Colo. Rev. Stat. Ann. Section 15-11-901 (West 1999); Mich. Comp. Laws Ann. Section 700.2722 (West Supp. 1999); Mont. Code Ann. Section 72-2-1017 (1999); Mo. Ann. Stat. Section 456.055 (West 1992); N.M. Stat. Ann. Section 45-2-907 (Michie Supp. 1995); N.Y. Est. Powers & Trusts Section 7-6.1 (McKinney Supp. 1999); N.C. Gen. Stat. Section 36A-147 (1995); Tenn. Code Ann. Section 35-50-118 (1996); Utah Code Ann. Section 75-2-1001 (Supp. 1999); Wis. Stat. Ann. Section 701.11(1) (West Supp. 1999).

O.R.C. Section 5804.08.

Uniform Probate Code Sections 5-210(b), 5-414(a).

Wash. Rev. Code Section 11.118.020 (2002).

Id.

Unif. Prob. Code. Section 2-907(b) (1990) (amended 1993).

Unif. Prob. Code Section 2-907(b)(6) (1990) (amended 1993).

IRS Circular 230 Disclosure: To ensure compliance with the requirements imposed by IRS Circular 230, we inform you that any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding tax-related penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
Rev. Rul. 78-105

Rev. Rul. 78-105, 1978-1 C.B. 295.

1976-2 CB 192.

Pet Trusts in Ohio

I am an attorney practicing law in Ohio in the following areas --

- Pet/Animal Trusts
- Estate Planning
- Probate
- Domestic Relations

Please contact me for more information at MARC@MLSLaw.Net or check out my web site at www.MLSLaw.Net.

Have a great day!