Pet Planning
Planning for your pets.
While we often consider our pets as cherished members of our family, the legal system views animals differently, categorizing them as personal property rather than individuals. Consequently, direct bequests of money to your pets, much like leaving money to your household appliances, are typically invalid under the law. However, through careful planning, you can still make provisions for your pets in your estate plan. The specific approach you choose will hinge on various factors, including the availability of a responsible and trustworthy caretaker for your pet, your desire to ensure your wishes are honored, the potential expenses and complexities associated with formal structures, and the unique needs of your beloved animal companion.
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Pets Differ from Humans; Unique Planning is Essential
While our pets hold a special place in our hearts as family members, the legal system does not grant animals individual status. Instead, the law views them as personal property. Consequently, direct financial bequests to pets, much like leaving money to inanimate objects such as refrigerators, are typically deemed invalid under the law.[1] Nevertheless, with thoughtful planning, you can make provisions for your pets within your estate plan. The approach you choose will depend on various factors, including the availability of a reliable and trustworthy caregiver for your pet, your desire to ensure your wishes are upheld, the potential costs and complexities associated with a formal arrangement, and the specific needs of your cherished animal companion.
Picking a Caretake
Arguably the most crucial decision in your pet's future is choosing a caretaker who will assume responsibility in the event of your incapacity or passing. Some individuals may find this decision straightforward if they have a close friend or family member who has cared for their pet during brief absences. However, for others, it can pose a greater challenge.
In cases where identifying a suitable caretaker proves difficult, you might want to explore the option of contacting a local humane society or a similar organization. They can help arrange a new home for your pet if you become unable to care for them or upon your passing. Before officially designating a person or organization in your will as your pet's guardian, it's crucial to engage in a discussion with them to ensure their willingness to take on this responsibility. Once you entrust your pet to someone or an organization, they legally become the owner of your pet (keep in mind, pets are considered personal property), with all the associated rights, including the authority to make decisions about the pet's well-being, including the possibility of euthanasia. Proper planning beforehand can help prevent situations where your pet's life might be at risk.
Keep in mind that circumstances can change, and a person who initially had the capacity to care for your pet might become unable to do so through no fault of their own.
Additionally, if you have multiple pets, consider whether it is practical to appoint the same person as caretaker for all of them. Different types of pets have varying needs, and it may not be feasible for one individual to meet the requirements of diverse animals. For instance, caring for a horse and a parakeet involves vastly different responsibilities.
Designate a Power of Attorney Agent
You should consider appointing an agent under your power of attorney to make decisions with respect to your pet if you become incapacitated or are unavailable (for example, when you are on a trip where your ability to be contacted is limited). In cases like these, it would be helpful for someone you trust to be able to act quickly on your behalf should a decision, such as the authorization to perform an emergency medical procedure, need to be made with respect to your pet. The agent you name to care for your pets may be different from the agent you name to handle your finances. Further, you may wish to create a separate limited durable power of attorney which pertains only to caring for your pets. In this way, you need not disclose your general durable power of attorney to the agent who cares for your pet or to the persons who provide services to your pet. Remember, if you use separate agents (one to provide care and the other to manage your funds), be sure to give the agent who manages your funds instructions with respect to paying for the care of your pets.
Alternatively, as described below, you may create a trust to care for your pet while you are alive. Should you be unable to care for your pet during your lifetime, the trustee and named caretaker could immediately step in.
After Your Passing — Casual or Official Arrangements
An advance directive is a formal The approach you take to provide for your pets after your passing can be either formal or informal. Your decision between a formal or informal plan will hinge on your specific goals, preferences, and the degree of enforceability you desire for your plan, if ever needed. Additionally, cost considerations may influence your choice, as formal plans may involve higher establishment and administrative expenses.
Informal Plans
Informal plans are relatively simple to create, relying to some extent on the goodwill of the person you select to carry out your wishes. In a typical informal plan, you might include a provision in your will bequeathing your pet to a specific individual or organization for care. You can also specify a cash bequest to assist in covering the expenses of caring for your pet. While the transfer of the pet represents a legally valid transfer of ownership (the person receiving the pet now legally owns it), the cash gift, even if the will mentions its purpose is for the pet's care, does not constitute a legally enforceable obligation. If the recipient of the cash decides to use the funds for other purposes, there is no legal means to ensure the money is allocated for the pet's welfare.
However, if you do not have someone fully committed to fulfilling this responsibility, an informal plan may not be the most suitable choice. It's also imperative to designate an alternative caregiver in case the primary individual named is unable to care for your pet. As previously mentioned, once you entrust your pet to someone, that person legally assumes ownership of your pet, with all the rights and responsibilities of a pet owner, including the authority to make decisions about the pet's well-being, which may include euthanasia.
Your plan should also account for a potential delay between your passing and the actual transfer of your pet to the designated caregiver. In numerous jurisdictions, the probate process, which varies by state, can take a week or more to authenticate and implement your will. (Probate is the formal procedure for validating your will and giving it legal effect.) Therefore, it's essential to have someone ready to step in immediately and provide care for your pet during the period between your passing and the handover to your chosen caretaker.
Formal Plans
There are two types of trusts that can be established to provide for the care of your pets: a 'traditional' pet trust or a 'statutory' pet trust.
Traditional Pet Trust: This type of trust requires a human beneficiary, typically a caretaker for your pet, to be designated. It's recommended to have an attorney experienced in this area of law draft this trust. In a traditional pet trust, both the pet and the funds allocated for the pet's care are placed into the trust. The caretaker for the pet is named as the beneficiary of the trust, and the trustee (who may be different from the caretaker) is responsible for disbursing funds to the caretaker. The intention is that these funds are used solely for the pet's welfare. The trust may stipulate that distributions to the caretaker are conditional upon their use for the pet's benefit. If a separate trustee is named, they might monitor the caretaker's use of the funds, as these distributions are subject to specific requirements regarding their utilization. Additionally, the trust terms can permit additional funds to be given to the caretaker as compensation for looking after your pet. As long as the trust complies with the state's laws in which it is established and state law enforces conditional trust distributions, the pet's care can be legally enforced through the courts.
Statutory Pet Trust: Statutory pet trusts are governed by laws enacted in all 50 states and the District of Columbia, allowing for enforceable pet trusts. These trusts must adhere to the specific state's legal framework. Therefore, it is essential to consult an attorney knowledgeable in this area to provide guidance and draft the trust document.
When creating a statutory pet trust, various factors need consideration, such as when the trust will terminate, selecting a trustee or co-trustees, determining the trust's funding amount, and establishing the destination for any remaining funds once the trust concludes. Each state has its own regulations on these matters, making it crucial to work with an attorney well-versed in your state's rules. For instance, Pennsylvania's pet trust statute requires the trust to terminate upon the pet's death or, if the trust is created for multiple pets, upon the last surviving pet's death. In other states, especially those with trust duration limitations, a pet trust may need to terminate after either 21 years from the trust's creation (once it becomes irrevocable) or the pet's passing. These rules are significant if you have a long-lived pet like a horse or cat.
Regarding funding, it's important to note that a court may reject or reduce the contribution amount. For instance, Florida law prevents overfunding of pet trusts and specifies that any excess property must be distributed to the settlor (the trust creator) or their estate unless the trust terms state otherwise. Thus, when funding a pet trust, ensure the amount aligns with your pet's particular needs and devise a contingency plan for any surplus funds that may revert to your estate due to exceeding the trust's intended use.
Your pet trust can also designate a third party to assess whether the caretaker (or trustee) is appropriately utilizing the trust funds for your pet's welfare and to enforce the trust if necessary. This additional layer of oversight ensures the trust and your pet's care are properly managed.
Furthermore, since probating a will can take weeks, during which no one has legal authority to manage your property, including your pet's care, creating a pet trust during your lifetime can provide a safeguard. In the event you become incapacitated, the trust will be operational, ready to execute your wishes for your pet's welfare. Additionally, since the trust is already in existence at the time of your passing, there will be no delay caused by the probate process when the trustee and caretaker assume their roles in caring for your pet. If you already have a revocable trust, your attorney can modify the document to include a pet trust.
Guidelines for Care
Regardless of whether your pet care plan is formal or informal, it's essential to provide detailed care instructions to ensure your pet's well-being. These instructions should cover any health or behavioral concerns, medication requirements, and any other specific care needs your pet may have. Include the names and contact details of veterinarians, groomers, and other professionals who regularly provide services for your pet. If your pet follows a particular diet or has allergies, make sure to document these as well. Remember to update these instructions as necessary.
In situations where you are unable to communicate or have passed away, the effectiveness of your caretaker relies on having access to as much information about your pet as possible. To facilitate this, maintain a file containing all pertinent documents related to your pet, including licenses, vaccination records, and any other critical documents. Ensure that your trustee and caretaker are familiar with how to access this vital information.
