by: John B. Palley, Attorney
Who will care for Oscar and Bailey When I die?
I have two cats, Oscar and Bailey, whom I love very much. When I die who will take care of them? I assume my Mom would, but what if my Mom isn’t alive or is unable to care for them? I think somebody would take them – but how can I assure that they will be well cared for? Herein lies the problem when the pet owner dies without having made plans for their beloved little friends. It is quite possible for the pet to become homeless or forgotten. In either instance, the premature death of the animal is possible. For most pet lovers, like myself, this is not an acceptable outcome.
As an estate planning attorney, I find that most of my clients are concerned about passing wealth on to their children with as little tax consequence as possible, or are concerned about who will take care of their children should the parents die before the children are grown. A growing area of the law, and a topic I always mention to my estate planning clients, is who will take care of your pets upon your incapacity or death?
There are actually three times where problems develop. The first is if the pet owner is hospitalized due to a traumatic injury or severe illness. In some instances the pet owner is unconscious, which can greatly confuse the situation. The second time a problem can develop is when a person dies without a provision in his or her will providing for pets. The question is who will take care of the pet, and with what money? The third instance in which problems can develop in caring for pets is when a person dies with a will which provides for his pets, but there are no instructions to take care of the pet before the will is admitted to probate. This time period between death and a will being admitted to probate is one in which the personal representative of the estate can do nothing without court direction.
The first step in the planning process is to find friends or relatives who are willing to care for your pets, and provide them with a good home. You then need to find a qualified estate planning lawyer. You need a lawyer to draft, at a minimum, a durable power of attorney and a will. Both documents should clearly state who you desire to care for your pets if you become unable to do so yourself. Additionally, you should name some alternate caretakers in case your first choice is unable or unwilling to adopt your pets when the need arises. You may also choose to leave some money to the caretaker with the intention that it be used to provide for the pet.
Contrary to what we see in the movies, most states do not allow a person to leave money directly to their pets. Some states allow you to set up an “Honorary Trust” for your pet. An Honorary Trust is one through which you select a trustee who has the responsibility of caring for your pet with the money left to the trust. These are allowed to operate for a maximum of 21 years, which is long enough to care for most household pets.
In 1991, California established Probate Code Section 15212, which gives a pet owner the ability to set up trusts which can last for the lifetime of the pet. This is an important change over prior laws, particularly for people with animals who are likely to live a long time.
It is important not to leave all your money to your pet however, as relatives are more likely to contest the will or trust if they think you left too much to an animal. To avoid this problem, leave enough for reasonable comfort and care of your pets, but not more than that.
In some instances, particularly with the elderly or people with a house full of animals, it can be difficult to find a caretaker. In these instances you may consider looking for a charitable organization that can provide for your animals. There are many organizations which do not euthanize their animals, particularly if a contribution is made to the organization through your will or trust! Additionally, you should do your homework on the facility to make sure they care for animals in a manner you would be happy with; for example, you likely wouldn’t want to leave your pet to a facility that cages up it’s animals for hours at a time.
There are pet owners who would prefer to have their animal euthanized at the owner’s death if there is no friend or relative available to provide a good home for the pet. This is an area of the law I choose not to discuss, as I do not encourage euthanizing a healthy animal – I feel there is always a better option.
Above all else make sure your attorney knows what provisions to put into your estate planning documents in regards to your pets. There are many attorneys with thirty years experience who have never provided in a will for a pet, so make sure your attorney knows what they are doing so that your Oscar and Bailey will be protected!
John B. Palley is an Estate Planning attorney in Sacramento,
and is an attorney member of the Animal Legal Defense Fund.