From The Humane Society of the United States (HSUS)
Your clients want the very best for their pets. They want to know you can draft a will and/or trust that provides for the dog, cat, horse or bird who is much more than simply property to them. Thought lately about providing for pets in your clients’ estate plans? Not likely. The subject seldom receives in-depth news coverage or even cocktail party discussion. But it deserves your attention. Because the bonds between people and their pets are usually so great, giving some attention to this issue can provide peace of mind — for you and your clients.
The Humane Society of the United States (HSUS) encourages estate planning professionals and laypeople 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 ensuring their companions’ safety, care and smooth transition to new homes.
All too often people assume they will survive their beloved pets or that friends, relatives, or neighbors — who once verbally promised to care for these pets in the event of death or disability — are still able or interested in adding new animals to their households. This is not always the case; sometimes their current circumstances prevent them from fulfilling that promise. Meanwhile, employees of local animal shelters — those on the front lines of our country’s pet overpopulation crisis — frequently see the unintended consequences of people’s failure to appropriately provide for their pets in their wills or ascertain that friends, relatives or neighbors truly want new companion animals in their households.
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. Similarly, people who want to ensure that they take their role as caregiver seriously may not know where to turn for advice on planning for their pets in estate documents.
The HSUS’s Office of Major and Planned Gifts now offers a free kit, “Providing for Your Pet’s Future Without You,” complete with a six-page fact sheet, wallet alert cards, emergency decals for windows and doors and caregiver information forms. The fact sheet is available online at www.hsus.org/petsinwills.
The issue facing your pet-owning clients
Because pets usually have shorter life spans than their human caregivers, your clients may have planned for their animal friends’ passing. But what if your clients become ill or incapacitated or die first?
As responsible pet owners, your clients provide their pets with food and water, shelter, veterinary care and love. To ensure this quality of care continues should something unexpected happen to them, it’s critical that they plan ahead.
What can clients do now to prepare for the unexpected?
In the confusion that accompanies a person’s unexpected illness, accident or death, pets may be overlooked. In some cases, pets are discovered in the person’s home days after the tragedy. To prevent this from happening to your clients’ pets, they should take these simple precautions:
• Find at least two responsible friends or relatives who agree to serve as temporary emergency pet caregivers. Provide emergency caregivers with keys to the home, feeding and care instructions, the name and phone number for the pets’ veterinarian and information about the permanent care provisions made for the pet.
• Make sure neighbors, friends and relatives know how many pets are owned and the names and contact numbers of the individuals who have agreed to serve as emergency caregivers.
• Carry a wallet alert card that lists the names and phone numbers of emergency pet caregivers.
• Post removable “in case of emergency” notices on their doors or windows specifying how many and what types of pets are in the home. These notices will alert emergency response personnel during a fire or other home emergency. Avoid using stickers. Because these are often left behind by former residents, firefighters may assume the stickers are outdated, or worse, risk their lives trying to find a pet no longer in the house.
• On the inside of front and back doors, affix removable notices listing emergency contact names and phone numbers.
The HSUS’s kit provides all of these materials, which makes following the above steps quite simple. Because pets need care daily and will need immediate attention should your clients die or become incapacitated, the importance of the aforementioned steps cannot be overemphasized.
How can clients ensure long-term or permanent pet care upon becoming seriously ill or dying?
The best way to make sure clients’ wishes are fulfilled is by making formal arrangements that specifically cover the care of their pets. It’s not enough that friends once verbally promised to take in the animals or even that the clients decided to leave money to friends for that purpose. As an attorney, draw up a special will, trust or other document to provide for the care and ownership of clients’ pets, as well as the money necessary to care for them.
How do the clients choose permanent caregivers?
Your clients should first decide whether they want all their pets to go to one person or whether different pets should go to different people. If possible, keep pets who have already bonded with one another together. When selecting caregivers, consider partners, adult children, parents, brothers, sisters and friends who have met the pets and have successfully cared for pets themselves. Also, name alternate caregivers in case the first choice becomes unable or unwilling to take the pets. Make sure your clients discuss their expectations with potential caregivers so they understand the large responsibility of caring for pets. Remember, new owners will have full discretion over the animals’ care — including veterinary treatment and euthanasia — so clients should make sure they choose people they trust implicitly and who will do what is in the best interests of the pets.
If all else fails, it is also possible for clients to direct their executors or personal representatives, in a will or some other estate planning document, to place their animals with other individuals or families (that is, in a non-institutionalized setting). Finding a satisfactory new home can take several weeks of searching so, again, it is important to line up temporary care. Clients also have to know and trust their executors and provide useful — but not unrealistically confining — instructions in their wills. They should also authorize their executors to expend funds from their estates for the temporary care of their pets as well as for the costs of looking for new homes and transporting the animals to them. The will should also grant broad discretion to the executors in making decisions about the animals and in expending estate funds on the animals’ behalf. Sample language for this approach is given in figure 1.
Is a will the best way to provide for a pet?
Although you, as a lawyer, 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.
How can setting up a trust help?
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.
• It can be structured to provide for a pet even during a lengthy disability.
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 also 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 underscore 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.
Pet trust legislation
In recent years, specific pet trust legislation has been enacted in 31 states (not including Massachusetts at this time) and the District of Columbia. The laws permit a person to create a trust for the care of designated domestic or pet animals and specifies that a pet owner’s intent to provide for his or her animal can now be protected by the courts.
For more information
To order a free copy of the kit in English, call HSUS Humane Legacy Manager Patricia Kauffman at (301) 258-3130 or send an e-mail to [e-mail humanelegacy]. The fact sheet also is available on the Internet at www.hsus.org/petsinwills.
Fig. 1: Sample will provision
[Article Number] A. As a matter of high priority and importance, I direct my Personal Representative to place any and all animals I may own at the time of my death with another individual or family (that is, in a private, non-institutionalized setting) where such animals will be cared for in a manner that any responsible, devoted pet owner would afford to his or her pets. Prior to initiating such efforts to place my animals, I direct my Personal Representative to consult _________________, D.V.M. (currently at the __________________ Hospital) or, in the event of Dr. _____________ unavailability, a veterinarian chosen by my Personal Representative, to ensure that each animal is in generally good health and is not suffering physically. In addition, I direct my Personal Representative to provide any needed, reasonable veterinary care that my animal(s) may need at that time to restore the animal(s) to generally good health and alleviate suffering, if possible. Any animal(s) not in generally good health or that is so suffering — and that is beyond the capabilities of veterinary medicine, reasonably employed, to restore to generally good health, or to alleviate its suffering — shall be euthanized, cremated, and the ashes disposed of in the discretion of my Personal Representative. Any expenses incurred for the care (including the costs of veterinary services), placement, or transportation of my animals, or to otherwise effect the purposes of this Article ___________ up to the time of placement, shall be charged against the principal of my residuary estate. Decisions my Personal Representative makes under this Article ________________ — for example, with respect to the veterinary care to be afforded to my animal(s) and the costs of such care — shall be final. My intention is that my Personal Representative have the broadest possible discretion to carry out the purposes of this paragraph.