Estate Planning for Pet Owners

August 9, 2011  

Now is the time to consider your pet’s future needs in a legal will or trust


Photo by Ted Raynor

By Jerald J. Cook

While many pet owners treat their pets as a part of the family, in the eyes of the law, pets are personal property. As such, it is the pet owner’s responsibility to plan for their pet’s care upon the owner’s death.

Pet owners have several options on how to best accomplish their objectives, but essential to all options discussed in this article is the need for the pet owners to begin thinking about this topic now. In order to implement any of these methods, the pet owner must have legal capacity to execute the necessary legal documents. All too often pet owners, especially elderly pet owners, wait until the need for a pet caregiver is close at hand by which time it is too late. Likewise, accidents happen every day. Therefore the take-away message is that the best to time to plan for the care of your pet is now, before the need arises.

Wills and Trusts

Pet owners have two main options for providing for their pet upon the owner’s death: (1) by Will, leaving the pet, as a bequest, to a caregiver outright as the new owner; or (2) by Trust (in which there are several options, from simple to complicated).

Using a will as the sole means to provide for a pet upon the pet owner’s death is by far the simplest way to provide for your pet, but it is not without its pitfalls. Using this method, typically an owner would make a specific bequest of the pet to the caregiver, possibly coupled with a conditional bequest of money to provide for the needs of the pet if the new caregiver accepts ownership. While the simplest method, once the bequest is made and the caregiver takes possession of the pet and money, there is no oversight of how the caregiver chooses to provide for the pet or use the money, as both would be the caregiver’s sole property.

Establishing a pet trust is typically the preferred method for providing for a pet upon the death of the pet owner. Trusts can be simple one-page documents or complicated instruments that fill an entire binder. How much guidance and control the pet owner wants to maintain over the care of their pet usually determines how complicated the pet trust needs to be. An additional benefit of the pet trust is that the pet trust itself, depending on state law, can be named “owner” of the pet. This can be extremely beneficial if the pet needs to be removed from the possession of the caregiver, as the caregiver never becomes the owner of the pet.

Trusts can be established either during the pet owner’s life (called an intervivos trust) or by the terms of pet owner’s Will upon the owner’s death (called a testamentary trust). Pet owners also have the choice, at least in some states, between creating a traditional pet trust and a statutory pet trust. A traditional pet trust, which is available in all states, directs the trustee to pay money to the pet caregiver in order to provide for the needs of the pet. In a traditional pet trust, the actual beneficiary of the trust is not the pet, but the caregiver. This is necessary because historically the law did not allow pets to be the direct beneficiaries of a trust. Some states still hold this view and therefore in these states a traditional pet trust is the only option.

However, the majority of states have now enacted statutes that specifically authorize the creation of a trust in which pets are the direct beneficiaries of the trust. In Kansas, for instance, K.S.A. 58a-408 specifically allows for the creation of a trust to provide directly for a pet. Importantly, the statute allows for the trust terms to be enforced upon the caregiver by any person so appointed by the trust. If the trust does not name a person to enforce the trust terms, any person with an interest in the welfare of the animal may petition the district court to enforce the trust terms. Additionally, Kansas’ statute, as with the statutes of many other states, specifically limits the monetary value of the trust to the value reasonably necessary to provide for the pet’s care.

Money Matters

How much, therefore, is the proper amount to leave in trust for the care of your pet? Pet owners need to consider the age of their pet, life expectancy, any special medical conditions or diets, and whether or not to compensate the caregiver for their services. Typically it is better to err on the side of too much rather than too little. If a court were to find that too much was contributed to the pet trust, the issue is usually dealt with by distributing any excess contribution to either the pet owner’s human heirs or the named remainder beneficiaries of the pet trust. Leaving too little, on the other hand, may mean the pet does not receive the care the owner intended and could put the caregiver in financial hardship.

Planning for the care of a pet after the owner’s death is an important aspect of pet ownership. If the pet owner fails to plan, the pet owner will be at the mercy of their state’s default intestacy laws. If a family member does not step forward to accept ownership of and responsibility for the pet, all too often the pet ends up at a shelter, which I am sure no pet owner wants to see.

Getting Started

Start by contacting an attorney that specializes in estate planning. If you need assistance in locating an attorney, state and local bar associations typically keep a list of estate planning attorneys in your area and can direct you to several suitable attorneys to help you set up an estate plan.
 
Disclaimer: This article is for informational purposes only. By writing this article the author is not engaged in rendering legal advice and the reading of this article does not create an attorney-client relationship. If legal advice is sought, please consult with an attorney licensed to practice law in your state.

About the author: Jerald J. Cook is an estate planning and trust litigation attorney with the Ong Law Firm, P.A., in Leawood, Kan. Licensed to practice in Kansas and Missouri, he is a graduate of the University of Kansas School of Law where he also received a certificate in tax law. He is also the proud owner of three bully breeds: Maximus, Sasha and Charlie.

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