Providing for your Pets in your Will – Sample Will provisions and Pet Trusts
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When making an estate plan and preparing for the future, most are careful to account for all their assets and personal possessions in their will, but what about your pets? If you’re a pet owner – and you do not include them in your estate planning, your pet may suffer, starve or be destined to a fate that you would never have wanted. Sometimes, and because formal arrangements are not made, a pet owner will merely entrust his animal to a close friend or family member by some informal means. We can all envision how that scenario might play out in the worst of circumstances. Even in the best of those circumstances, the pet's new owner may not be able to keep the pet because of allergies, lack of time, conflict with other pets or a prohibition of pets in the residence. A pet owner's only assurance is to draft legally enforceable documents that will guarantee the pet's future.
Although much more than mere “property” to their owners, pets under the law are considered just that. As such, instructions in your will for the care of a pet do not guarantee the pet's future. Wills are designed to distribute property after death, not to provide instructions as to the care and management of that property. So, for instance, if the family automobile is left to the testator's son, the son receives the car but cannot be forced to register or insure it, or to have it tuned up every few months – even if the will had those specific instructions. Similarly, testamentary instruction to care for a pet also fails – because such language is unenforceable. Also, because the law considers pets as property, you cannot leave money or property directly to your pet in your will. If you try, that money or property will be included in your residuary estate.
You must make a plan:
To prevent unintended consequences, provisions are necessary in the owner’s Will to provide effectively for their care and comfort. Also, on the death of the pet owner, advance arrangements should be made to protect the pet, during the period between the owner's death and the admission of the Will to probate. Often this period is not considered but although a Will can make provisions for the care of the pet, no action can be taken by the Executor to carry out these provisions until the Will has been admitted to probate and the Executor has received the authority to proceed. The time between death and the authority of the Executor to act can vary between several weeks and several months. Plans must be made to ensure care for the pet during this interim period.
Designating Caretakers for your Pets in your Will:
A pet owner should find a friend or relative willing to take the animal and give the animal a good home on the death of the pet owner. The matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. The person who will receive an animal as the result of a bequest in a Will should understand that he or she becomes the animal's owner and, as such, has all the rights and responsibilities of ownership.
The pet owner should then include language in his/her Will, leaving the animal to the caretaker the pet owner has selected.
Sample language: “I give my [cat, dog, etc.], and any other animals, which I may own at the time of my death, to [ ], presently residing at [address], with the request that he/she treat them as companion animals. If he/she is unable or unwilling to accept my animals, I give such animals to [ ], presently residing at [address] with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, my Executor shall select an appropriate person to accept the animals and treat them as companion animals, and I give my animals to such person.
I direct my Executor to give [$_] from my estate to the person who accepts my animals, and I request that these funds be used for the care of my animals.
Providing Funds for Pet Care:
A stated above, a pet owner cannot leave any part of his or her estate outright to an animal. However, the owner may leave a sum of money to the person designated to care for the pet, along with a request that the money be used for the pet's care. It is important for the pet owner to select a caretaker he/she trusts and who will be devoted to the pet, because the caretaker has no legal obligation under the above provision to use the money for the purpose specified.
The owner should leave only a reasonable amount of money for the care of any pet. A large sum of money could prompt relatives to challenge the Will and the court may invalidate the request for pet care.
Designating a Shelter or Charitable Organization to Care for Pets:
If no friend or relative can be found to take the pet, the pet owner should look for a charitable organization whose function is to care for or place companion animals. A humane society or shelter might agree to accept the animal along with a cash bequest to cover expenses.
Establishing a Pet Trust:
Currently, under the laws of forty-six states and Washington, D.C., an animal can be the beneficiary of a trust created to care for the animal. Current list is here. Establishment and management of a pet trust offer pet owners a great deal of flexibility and peace of mind – but also allows for enforceability and monitoring in state court.
State laws vary but generally, these the trusts can be (i) a testamentary trust, created under a Will, to take effect upon the death of the pet owner, or (ii) an inter-vivos trust, created and effective while the pet owner is alive.
Pet trusts are established so that part of the estate can go towards the care of the person’s pets after the death of that person and it will be enforceable in court. The grantor is the person whose will creates the trust. The trustee is the person who manages the assets in the trust, and the beneficiary is the pet. The trustee may or not be the same person who is the caregiver for the animals. If the trustee is not the same person, the trustee will distribute the assets of the trust to the caregiver as necessary for the care of the animals. The value of the assets cannot be excessive or a court may modify the trust.
Since there are a few states in which a pet trust is not valid, and other states where enforcement is discretionary, it is advisable to set up a pet trust with the help of an attorney who specializes in estate planning.
The information on this website is not legal advice and is not a substitute for legal advice. For legal advice, please consult an attorney.
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