Pet obsession is nothing new, but social media has taken our love affair with animals to another level. Today, furry friends are considered more than just part of the family, they are famous stars on Facebook and Instagram. Some parents post more photos and videos of their animals than their children, and people are spending more money than ever on pet indulgences.
But while “fur babies” have worked their way into a new place in the hearts, homes and wallets of their owners, the law sees these relationships quite differently. From a legal perspective pets are typically considered tangible personal property, no different than your car or your furniture. In some ways this is beginning to change: Pet custody is being considered in many divorce cases. But little has changed in terms of what happens to pets when their “parents” pass away—unless proper plans have been made.
Just as parents know to name guardians for their children, they should do the same for their pets. Here are two steps to ensure that your pets are covered in an appropriate estate plan.
Step 1: Choose Your Caretaker
Start by determining who will care for your pet if something happens to you. This could be a spouse, a child, another relative or a friend. Discuss your wishes with your chosen caretaker. Make certain they agree to assume responsibility for your pet. If no one in your life fits the bill, consider a local or national charitable or humane organization.
Some organizations will care for your pet after you pass. It helps if you give a donation to defray the cost of that care. Check their policies to learn how they place pets and how long they will house them before making a permanent placement.
Step 2: Put It in Writing
Once you’ve decided who will take care of your pet, put your post-mortem wishes in writing. There are three basic ways to do this: in a will, a memorandum or what’s called a Pet Trust. Each has its pros and cons, depending on your specific circumstances:
Your will disposes of all of your property (whether tangible, such as pets, or intangible, such as bank accounts) in your sole name when you die (meaning there is no joint owner or named beneficiary). Leaving your pet to someone in your will can be as simple as including a statement such as: “I leave my pet dog, Tucker, to my sister Jane Smith.” This statement is legally binding and establishes that Jane will inherit Tucker.
However, what if Jane doesn’t want Tucker? Or, what if, after a month, Jane decides it’s not working out with Tucker? Jane will become Tucker’s owner and can do whatever she likes with him. If you’ve left a sum of money to help cover costs, there’s nothing stopping Jane from taking the money and dropping Tucker off at a shelter.
Nonetheless, leaving a bequest in a will, with or without money, can work if you know the person well and trust them to follow your wishes.
Letter/Memorandum (Separate from a Will)
Some states allow individuals to create a binding letter (or memorandum) leaving their tangible property to specific individuals when they pass if the document is signed by the pet owner. A letter or memorandum may be a good option if, for instance, you are going to have surgery or are going on a trip and want to get something in writing quickly so that your pet is protected in case something unexpected happens. From a legal perspective this memorandum will be considered separate and apart from any Will that disposes of tangible personal property.
Whether or not such a memorandum is valid varies from state to state, so it’s best to consult an attorney in your state to determine if this is viable option for you.
A Pet Trust is a more elaborate legal document that attempts to address all the above issues by setting aside a sum of money for your pet’s care. Pet Trusts identify your pet by name, designate a caretaker, appoint a trustee to manage any set-aside money, and dictate the type of care your pet will receive after you’re gone.
The Trustee of the Trust will be in charge of the money and will have the legal responsibility to ensure that the caretaker uses the money as ordered by the Trust, including food, veterinary care, routine medications and supplements, and any other recurring costs over your pet’s life. The pet will live with the caretaker who will see to their daily needs. There may be remaining funds in the trust after the pet passes; therefore, a remainder beneficiary must be named. However, naming an individual as a remainder beneficiary, especially one who is not an animal lover, might cause challenges to trusts under certain state laws that allow interested parties to reduce the amount of funds held for the pet’s care if a court deems the trust to be overfunded.
A pet trust is only supposed to cover the expenses of caring for your animal, so clearly documenting your cost assumptions is a good idea. Generally speaking, an attorney can help you set up a Pet Trust.
The most important thing is that you choose a plan and implement it. An estate planning professional can help with the specific details. You’ll rest easy knowing that your four-legged family member will be in good hands.
Tracy A. Craig is a partner and chair of Seder & Chandler's Trusts and Estates Group. She focuses her practice on estate planning, estate administration, prenuptial agreements, guardianships and conservatorships, elder law and charitable giving. She works with individuals in all areas of estate and gift tax planning, from testamentary estate planning and business succession planning to sophisticated lifetime leveraged gifting techniques, such as grantor retained annuity trusts (GRATs), intentionally defective grantor trusts, family limited liability companies and qualified personal residence trusts (QPRTs). Tracy serves in various fiduciary capacities, including trustee and personal representative (formerly known as executor). She also works with clients on issues facing elders.
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