Pets are like members of our families. As pet owners, we are responsible for their care and well-being.
If something should happen that would prevent you from providing for your pet’s care, how would your current plans address that contingency?
Have you even thought about a plan for your pet in the event of your death or incapacity? Here we provide an overview of some things to consider when planning for your pet.
Pets are Not People; Special Planning is Necessary
Although we may consider our pets to be family members, the law does not recognize animals as individuals. Instead, the law classifies animals as personal property. Therefore, you cannot leave money directly to your pets (just like you can’t leave money to your refrigerator). A gift under your will to your pet would, typically, be invalid.[1] However, with proper planning, you can provide for your pets in your estate plan. The type of plan that you create for your pets will depend upon several factors, including the availability of a reliable and trustworthy person to care for your pet, your desire that your wishes will be honored, the potential cost and complication of using a formal structure and the unique needs of your pet.
Choosing a Caretaker
Perhaps the most important decision that you can make when planning for your pet is the selection of a caretaker who will care for it in the event of your death or incapacity. For some, identifying a caretaker may be easy if a close friend or relative has already taken care of your pet from time to time during short absences. For others, it may be more difficult. In cases where you may not have anyone to care for your pet, you should consider contacting a local humane society or similar organization to arrange a new home for your pet should you die or become incapacitated. Before leaving a pet to someone or to an organization in your will, check with that person or organization before you sign your will to determine whether that person or organization is willing to take on this responsibility. Once you give your pet to a person or an organization, that person or organization legally owns your pet (remember, pets are considered personal property), with all the rights of a pet owner, including the right to euthanize the pet. Creating a plan beforehand will help to avoid a situation where your pet may be euthanized.
Should you name an individual to care for your pets, you should also appoint one or more successors in case the first person chosen predeceases you or later decides not to care for your pet.
Remember, circumstances may change and a person who previously was able to care for a pet, through no fault of their own, may be unable to have a pet.
Also, if you have more than one pet, consider whether you should appoint the same person as caretaker for all your pets. It may not be practical for one person to assume this responsibility. For instance, it may not be proper for the same person to care for your horse and your parakeet (as those pets have very different needs).
During your Lifetime - Appoint an Agent Under Power of Attorney
You should consider appointing an agent under your power of attorney to make decisions with respect to your pet if you become incapacitated or are unavailable (for example, when you are on a trip where your ability to be contacted is limited). In cases like these, it would be helpful for someone you trust to be able to act quickly on your behalf should a decision, such as the authorization to perform an emergency medical procedure, need to be made with respect to your pet. The agent you name to care for your pets may be different from the agent you name to handle your finances. Further, you may wish to create a separate limited durable power of attorney which pertains only to caring for your pets. In this way, you need not disclose your general durable power of attorney to the agent who cares for your pet or to the persons who provide services to your pet. Remember, if you use separate agents (one to provide care and the other to manage your funds), be sure to give the agent who manages your funds instructions with respect to paying for the care of your pets.
Alternatively, as described below, you may create a trust to care for your pet while you are alive. Should you be unable to care for your pet during your lifetime, the trustee and named caretaker could immediately step in.
Following your Death — Informal or Formal Plans
The plan you create to care for your pets following your death can be formal or informal. Whether you use a formal or informal plan will depend on your goals, objectives and desire to make the plan you create truly enforceable, if necessary. Also, cost can be a factor in choosing a plan, as a formal plan may cost more to establish and administer.
Informal Plans
Informal plans are easy to create, but to some extent, rely on the goodwill of the person you choose to carry out your wishes. In a typical informal plan, you would add a bequest in your will giving your pet to a person or to the care of a specific organization. You may also give a cash bequest to this individual or organization to help defray the cost of the care to be provided. While the gift of the pet constitutes a legal transfer of ownership (the person to whom you gave the pet now owns the pet), the cash gift, even if the will specifies that the money be used for the pet’s care, is not a legally enforceable obligation. If the recipient of the cash chooses to use the money for other purposes, there is no legal way to enforce that the money be used for the pet’s care.
If you have trustworthy friends or relatives who love their (and perhaps your) pet and you know the recipient of your pet will properly care for it, the non-enforceability of an informal plan may not be a concern.
However, if you lack someone committed to carrying out this task, an informal plan may not be your best option. Also, you should always name a successor caretaker in case the primary person named is unable to care for your pet. Although mentioned above, it is important to restate this cautionary note, once you give your pet to a person, that person legally owns your pet, with all the rights of a pet owner, including the right to euthanize the pet.
Your plan should take into consideration some delay between your death and the transfer of your pet to the named caretaker. In many jurisdictions, it can take a week or more to probate your will. (Probate is the official process, different in each state, by which your will is authenticated and given effect.) Be sure to have someone immediately step in and provide care for your pet during the time between your death and the delivery of your pet to your designated caretaker.
Formal Plans
There are two types of trusts that you can create to care for you pets: a “traditional” pet trust or a “statutory” pet trust.
Traditional trusts require a human being to be the beneficiary of the trust. This type of trust should be drafted by an attorney who is well-versed in this area of the law. Typically, this type of arrangement requires that both the pet and the funds that will be used to care for the pet be given to the trust. The caretaker for the pet is named as the beneficiary of the trust and funds are distributed by the trustee (perhaps, someone other than the caretaker) to the caretaker, with the intention that the funds be used to care for the pet. Distributions from the trust to the caretaker can be made on the condition that the caretaker use them to care for your pet. If you name a trustee separate from the caretaker, the trustee may wish to monitor the caretaker’s use of the funds (as they are being distributed subject to a specific requirement as to their use). If you desire, the terms of the trust can also allow additional trust funds to be distributed to the caretaker as compensation for caring for your pet. So long as the trust complies with the law of the state in which it is created, and state law enforces conditional distributions from a trust, the care of your pet can be enforced in court.
An alternative to the traditional trust is the statutory pet trust. All 50 states and the District of Columbia have enacted laws (hence the term “statutory”) that allow for pet trusts.[2] A pet trust that complies with state law is an enforceable trust that can allow for your wishes regarding the care of your pet to be carried out and that any funds contributed to the trust are used for that purpose. The terms of the statutory pet trust must comply with the governing state’s law. Therefore, it is important that you retain an attorney who can provide advice about this subject and draft the trust.
There are many things to consider when creating a statutory pet trust, including when the trust will end, selecting a trustee or co-trustees, deciding how much money should fund the trust and where any leftover funds will go when the trust ends. Also, state law may require that the pet be living at the time the trust is created. Each state has its own rules about some or all of these items, so using an attorney who understands the rules in your state is very important. For example, Pennsylvania’s pet trust statute[3] requires the trust to end upon the death of the pet or, if the trust is created for more than one pet, upon the death of the last surviving pet. In other states, particularly those that have laws limiting the duration of trusts, a pet trust may be required to terminate upon the earlier to occur of 21 years from the date the trust was created (became irrevocable) or the pet’s death.[4] These rules become very important if you have a pet, such as a horse or a cat, that may outlive the term of the trust.
When considering the amount of funding for your pet trust, keep in mind that a court may reject (or reduce) the amount that you wish to contribute. For example, Florida law contains a provision that prevents the “over-funding” of a pet trust: “Property of a trust… may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor’s estate.”[5] Accordingly, as you consider funding a pet trust, be sure that the amount you contribute is reasonable given the particular needs of your pet(s) and also create a back up plan for any funds that may be returned to your estate as being beyond the intended use of the trust.
Your pet trust may also designate a third party to determine if the caretaker (or trustee) is properly using the trust funds to care for your pet and to enforce the trust, if necessary.
This provides an added layer of oversight to make sure that the trust, and your pet’s care, are being managed properly.
As described above, it can sometimes take weeks to probate your will. During that time, there is no one who has the legal authority to manage your property (including the care of your pet). Of course, you may have made informal arrangements for your pet, but such arrangements are not legally binding. Accordingly, you may wish to create a pet trust during your lifetime so that should you become incapacitated the trust will exist and be capable of carrying out your wishes for your pet’s care. Also, because the trust will already be in existence at the time of your death, there would be no delay caused by the probate process in having the trustee and caretaker assume their duties and begin caring for your pet. If you already have a revocable trust, your attorney can modify that document to include a pet trust.
Care Instructions
No matter how formal or informal your pet care plan, be sure to leave care instructions so that your pet’s caretaker knows about any health or personality issues, medications, and other care items specific to your pet. Your instructions should include the names and contact information of veterinarians, groomers and other professionals who provide services to your pet. If your pet has a specific diet or any allergies, you should document those as well. Your instructions should be updated as needed.
If you are unable to communicate or have passed away, to be effective your caretaker will need as much information about your pet as possible.
You should leave a file containing all relevant documents concerning your pet, such as licenses, records of vaccinations and other important documents. Be sure your trustee and caretaker know how to access this information.
State Law Considerations
As a final consideration, the law of your state may influence your plan. Some state laws require pets to be given to a surviving spouse or children under the age of 21. For example, in New York, “domestic and farm animals with their necessary food for sixty days” along with certain other assets up to $20,000 in value, are not assets of your estate, but are automatically set aside and pass outside of your will to a surviving spouse or, if you do not have a surviving spouse, then to your children under the age of 21 years.[6]
Incorporating a Plan that Suits Your Goals and Objectives
The plan that is right for you and your pet will depend on your own unique goals and circumstances. Your PNC Private Bank team, together with your legal and other professional advisors, can help you plan for the care of your pet.
