Bar News - October 6, 2006
Probate Law Pet Care Should Be Included in Estate Planning
By: the Humane Society of the United States
Because the bonds between people and their pets are usually great, giving attention to providing for pets in your clients’ estate plans should not be taken lightly.
The Humane Society of the United States (HSUS) encourages lawyers to carefully consider the ramifications of failing to adequately provide for companion animals in the event that the owners die before their pets. Equally important is moving forward with necessary actions for ensuring pet safety, care, and smooth transition to new homes.
Pastel by Lillian Wise
Even people who have conscientiously provided for their pets in their wills may have neglected to consider a trust and/or powers of attorney affecting their companion animals that would commence in cases of severe disability, when a will would not be read.
Is a will the best way to provide for a pet?
Although, as a lawyer, you will help decide what type of document best suits your clients’ needs, clients should be aware of some drawbacks to a will. For example, a will takes effect only upon death, and it will not be probated and formally recognized by a court until days or even weeks later. What’s more, if legal disputes arise, the final settlement of property may be prolonged. Even determining the rightful new owner of pets can get delayed. What this means is that it may take a long time for instructions regarding the pets’ long-term care to be carried out.
This doesn’t necessarily mean that people should not include provisions in their wills that provide for pets. It simply means that clients should explore creating additional documents that compensate for their wills’ limitations.
Unlike a will, a trust can provide for pets immediately—not only if your clients die, but also if they become ill or incapacitated. That’s because clients determine when their trusts become effective. When a trust is created for pets, money is set aside to be used for the pets’ care and trustees are specified to control the funds.
A trust created separately from the will does, however, carry certain benefits: It can be written to exclude certain assets from the probate process so that funds are more readily available to care for a pet; and, it can be structured to provide for a pet even during a lengthy disability.
The trust should stipulate the frequency and amounts of payments, as well as whether amounts should be adjusted for inflation. Also, pet owners also may want to factor in paying a service fee to caretakers and/or trustees.
There are many types of wills and trusts; determining which is best for your clients and their pets depends on their situations and needs.
As an attorney, you will need to make sure that a trust for the benefit of one or more specific animals is valid and enforceable in the state in question. Even if state law recognizes the validity of such trusts, keep in mind that tying up a substantial amount of money or property in a trust for the animals’ benefit may prove to be controversial from a relative’s or other heir’s point of view. Moreover, trusts are legal entities that are relatively expensive to administer and maintain—all of which underscores the need for careful planning.
After you’ve overseen the creation of wills, trusts, or both, your clients should leave copies with the people they’ve chosen to be executors of their estates, as well as the pets’ designated caregivers, so the caregivers can look after the pets immediately. (The executor and caregiver may or may not be the same person.) Make sure the caregivers also have copies of the pets’ veterinary records and information about their behavior traits and dietary preferences.
To help with this issue, the HSUS’s Office of Major and Planned Gifts offers a free kit, “Providing for Your Pet’s Future Without You,” which includes a six-page fact sheet, wallet alert cards, emergency decals for windows and doors, and caregiver information forms. To order free copies of the kit for your clients, call 202-452-1100 or send an e-mail to email@example.com. The fact sheet is also available on the Internet at www.hsus.org/petsinwills.
This article was written by Rob Blizard, Nancy Peterson, Murdaugh Madden, and Roger Kindler of the Humane Society of the United States.