Unless we are the proud parent of a Galapagos tortoise or a Blue Macaw, there’s an excellent chance that we will outlive our pets.
But what happens if we don’t? Or what happens if we can no longer care for them?
No one likes to ponder the unthinkable, but we must for the sake of everyone we love. When we’re young, life insurance secures the financial welfare of our families; when retirement approaches, wills and trusts leap to mind. How can we not consider our interspecies family members while legally documenting our wishes for our human families.
Unfortunately, many people rely on simple verbal agreements with friends and/or family without realizing that such agreements are not binding or enforceable. Occasionally, life circumstances change for the “godparents” and they are no longer able or willing to fulfill their vow. Tragically, stories abound of pets who only knew forever homes being surrendered to shelters or left to roam the streets after their human dies, all because of poor planning.
Further muddying the waters of juris prudence is that pets are legally viewed as property. While few would dispute that our pets are definitely not on par with toasters or ottomans, they are not legally on par with people. As such, there is no guarantee that they will be adequately cared for if we’re incapacitated - or worse - unless we file the appropriate legal documents.
Pets’ “property” status places them at a distinct disadvantage when the time comes to divvy up the estate. In a will, a pet owner may designate a specific person to be the heir of the pet, but it does not provide for how well that pet will be cared for by that person. Moreover, “property” does not immediately change hands upon a person’s death. Probate can be a protracted process, especially if legal disputes arise. Who cares for the pet in the interim?
A serious downside of wills is that they do not provide for financial disbursements over the pet’s lifetime. Also, a will’s provisions regarding pet care are “honorary.” The integrity and financial condition of the heir may dictate how those designated funds are spent once inherited.
When one forms a trust, on the other hand, the designated trustee has a legal duty to honor the pet owner’s wishes. Pet trusts guarantee the disbursement of funds as outlined. Their specificity can be legally invoked if the estate is contested by a litigious family member who holds that “Uncle Billy must’ve been out to lunch when he decided to leave 20 grand for ‘Love Nugget’.” A bonus provision allows for the naming of an investment trustee charged with growing the principal fund for future use on behalf of the pet.
One of many advantages of a trust over a will is that a pet owner can make provisions for a pet should the owner become incapacitated temporarily or permanently. The pet owner has complete control over the provisions which can be revised or revoked at any time while the pet owner is alive. As of 2015, 49 states recognize pet trusts. Minnesota is the only holdout.
Of course, one should choose a trustee with the utmost care. Preferably, the person should be one of sterling character who knows the pet owner and pet(s) well and will dutifully follow the trust no matter what.
For those who cannot fork over $500-$1,000 for a pet-friendly attorney/estate planner, an affordable DIY option is available. Brainchild of Illinois lawyer Peter Canalia, the Peace of Mind Pet Trust contains the tools needed to craft a trust based on individual state law.
Some members of The American Bar Association have taken a strong stand on pet welfare when advising fellow lawyers: “You will be doing your clients a great service when you help them secure their pets’ futures,” writes Rachel Hirschfeld, Esq., creator of the pet protection agreement and the Hirschfeld Pet Trust.
“As painful as it is to think of leaving beloved pets behind, there is no greater sense of security for pet owners than knowing that all their companion animals are provided for.”