National Pet Day was Tuesday, April 12, 2023. For animal lovers, it provides a reminder to consider including pets in our estate plans, especially the use of pet trusts. Specialized pet trust law has developed because of the huge popularity of pets in this country, and the strong desire of pet owners to provide for their pets, even after the owner's death. Many trusts were established after the highly publicized example of Leona Helmsley's several-million-dollar trust for her dog, Trouble. Here is a summary of the pet laws in the various states.
The special feature of a pet trust is the same special feature of the purpose trust used in the Patagonia estate plan; they have no ascertainable beneficiaries; therefore, there's no one to enforce the trust. (Although some animal law advocates see the point differently, a pet is not legally regarded as a beneficiary, as it cannot act on its own or through a legal representative.)
The Legal Status of a Pet
Legally, pets are considered your personal property, like your car, furniture or jewelry. Without any specific plans for your pets, your heirs inherit the ownership of your pet, who may or may not be willing or able to care for your pet. If you own a pet, there are some steps you should take immediately and some longer-term planning you should consider.
Step one: Line up two friends or relatives who agree to serve as emergency and/or long-term caretakers. Provide them with the veterinarian’s name, discuss your wishes of what should happen to your pet and provide contacts for each. Discuss upfront how expenses will be covered. Stay in touch with your potential caretakers because circumstances can change over time. People move and have children, or situations may arise that impact their physical and financial ability to help manage your affairs. Having two caretakers means that you have alternatives when the situation arises.
Step two: Carry a wallet card with emergency contact information related to your animals and give the contact information to your veterinarian and your lawyer.
Planning for Pets
Planning for pets has both legal and financial considerations, in addition to deciding whether to involve the humane society or have strictly private agreements and trusts. Funds will likely be needed to cover temporary or permanent costs for your animals, including board bills and health care. Verbal promises are ambiguous in most cases, so having a trust or power of attorney in place to clarify available resources can help. Here are four options:
- A living trust is a popular choice because it can be accessed immediately and is private (without probate court delays). It can be used if you become ill or incapacitated. You set aside money for care, and a named trustee has control. A trust is more flexible than a will, which takes effect only at death and can be a slow process.
- A pet trust may be included in a living trust, or as a stand-alone trust. The named trustee is given funds and guidelines/mandates as to how to administer funds for your pet and how to distribute any remaining funds when your pet dies. A pet trust is now valid in all states.
- Power of attorney is used in the event of physical or mental incapacity, with provisions outlined for expenses, but terminates when the owner dies, unlike a trust or will. Powers of attorney are chosen when a person is alive and competent and should be part of any comprehensive estate plan. Otherwise, a disability event can result in the need for a guardian to be appointed; a lengthy process with no guarantee your pets will be covered. Name alternates, in case the initial agent is unable or unwilling, to serve. A power of attorney can be as broad or as narrow as you desire, so you could grant a power of attorney that has power only for specific funds for the maintenance and support of specific animals, without giving them a broad power over other assets. Also, you can appoint more than one person to hold the POA, but he POA does not go into effect until you actually give the physical paper to the person. The power of attorney can be revoked at any time; you can appoint one person and remove them and replace them with another, if you should so choose.
- Life insurance is useful if you do not have sufficient property to support your animal’s care. Life insurance “creates” property when you die, which can be used to fund your pet trust.
Pet owners also have the option of putting a provision in their will for the care of their pets. Such provisions designate a caretaker and commonly set aside an amount of money with a request for the money to be used by the caretaker in the care of the pets. Pet owners can provide alternative caretakers, if the original is unable or unwilling to accept the animals and can designate temporary guardians for pets while estate issues are being settled.
Unlike a trust arrangement for the care of a pet, there is no continuing obligation for the executor under a will to see to the well-being of the pet once the administration of an estate is complete. The integrity and moral commitment of the caregiver will be your only assurance that the pet’s care will continue. Therefore, choose your primary caregiver and alternate caregiver wisely.
Consider making arrangements with a humane society, animal rescue group or animal “rest home” to take possession and care of your pet. You should review the type of care offered by each organization, its facility and staff, as well as the costs associated with that care.
Pet Protection Agreement
The Hirschfeld Pet Protection Agreement, created by Rachel Hirschfeld, is a check-the-box, fill in the blanks, legally enforceable contract between a minimum of two individuals or entities—the pet parent and the pet guardian. No attorney is required, and it is valid in every state. (Currently available through Legalzoom.com)
To care for their pets, clients should take action immediately ”just in case,” to have someone to care for them, if the client is not able to. Additionally, they should consider the alternative ways to provide for their pets, and fund that care, after the client's death.