This two part article has been updated HERE
We all love our pets and want them to be loved and cared for, but what if your pets outlive you? Can you truly count on someone to take them in or make good decisions about care? I have thought about pet estate planning quite a bit over the past couple of months. It started during an office visit I had with a wonderful client who told me he was having a surgical procedure that he might not survive. I wasn’t sure when the surgery was being performed, but a few days after the office visit, I was very sad to hear that he had died. He lived with many cats and fortunately had made plans to have his sons take care of the animals. They followed through with his wishes, but it has been a lot of work for them.
Have you done any formal pet estate planning? Chances are you haven’t. What would happen to your pets if you died? If you lived alone, animal control services would pick up your pets. They would contact family to see if anyone was willing to care for the pets. If they couldn’t find someone and if your pets were adoptable, they would try to place them. If the pets were old, sick or had behavioral issues that would make placement difficult, they could face euthanasia. Think of how stressful and scary this situation could be for your pets.
For this two-part article, I interviewed two attorneys, a rescue organization and two centers that offer “retirement” homes for cats. Planning for your pets’ care in your absence is something too important not to consider.
“You cannot automatically count on family members to take over your pet’s care,” says Colleen McCammon, president of the Animal Assistance League of Orange County. Pet and family member health issues, other pets in the home, pet restrictions where someone lives, and pet behavior issues all complicate whether a family member could take in your pet. Although family members might come out of the woodwork when money and property are at stake when a relative dies, there is not much interest in the pets that are left behind.
This reminds me of a former client, a single woman who died of breast cancer in her 40s. She was successful and owned a condo and two cats. She had wrongly assumed that her relatives were going to take her cats. She did not have any formal documents drawn up, and when she died, her family wanted to euthanize her cats. They were excited, though, about selling her condo and getting the proceeds. Fortunately, a friend interceded and found new homes for the cats.
Brian Chew, an Irvine attorney , counsels his clients to be concerned about their pets in their general estate planning. He recommends creating a pet trust provision in your revocable living trust. A pet trust is a formal way to ensure pet care. The trust would be administered by an assigned pet trustee, and this individual would need to be informed and aware of the assignment. If the trustee doesn’t do his job, the trust is hard to enforce. You can also nominate a pet trust enforcer (someone other than the pet trustee) to help ensure that funds you designate for your pets’ care are used on the pets’ behalf.
California Probate Code states that “A pet cannot be a beneficiary under a Will.” You cannot leave millions of dollars to your pet, as New York billionaire Leona Helmsley did. She left $12 million to her Maltese, Trouble, in 2007. Provisions to provide for a pet in a will are not legally enforceable in California.
“Provision for the care of a pet can be made by establishing a trust, by making a conditional gift, or by coupling an outright gift with a precatory request that the gift be used for the care of the pet. If a trust is established, it is an honorary trust and cannot be enforced, since there is no beneficiary to enforce it,” says attorney Ronald Wiksell of Santa Ana. He recommends making a gift to a named beneficiary, who will actually assume care of the pet, and coupling it with the care request using the following verbage:
“I give the sum of __________ (specify amount) to ____________ (name of beneficiary). It is my wish and I request that __________ (name of beneficiary) protect and care for my ____________ (description and name of pet) in the same manner as I have done during my lifetime. This request is precatory only, and not mandatory.”
Estate planning needs to cover you, any spouse, children and pets. Attorney Chew thinks three main points should be considered:
Who is in charge? Are there backups? These are the trustees, guardians or beneficiaries. You need to talk to these people so they know they are being named. › How much money should you leave for your pets’ care? Think about current pets and their expenses and how much will be needed to cover health care as they age. What happens to any residual funds that have been allocated to pet care after the pet dies?
Have a backup plan: Should you purchase pet insurance? Will the trustee be able to live in the same place as your pets? Do you need to pay for the trustee’s moving or living expenses? In addition to estate planning if you die, what would happen if you became incapacitated and could no longer care for your pets?
This topic is rather depressing, but not as depressing as what could happen to your pet if you do not make arrangements ahead of time.
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