December 01, 2001

 

 Pet estate planning: preparing for your pet's future without you - December 1, 2001

Posted November 15, 2001

 

Children are ideally supposed to outlive their parents. This dynamic is reversed in the situation of pet and pet owner. Pet owners, in their lifetime, generally own and bond with several companion animals. It is responsible to draft wills in cases where children are involved, but what if clients were to die or become incapacitated, expectedly or unexpectedly? Veterinarians can advise clients that there are ways to deal with the situation of not surviving their animals.

Photo courtesy of Dr. Catherine Stiner

The idea of writing a pet into a will or establishing a pet trust sounds atypical, even unenforceable. But, in a handful of states it is enforceable, and it's becoming more popular.

It was documented in the late 1800s that the common-law courts of England supported the idea of giving monies to care for specific pets. This idea did not make it to the United States, specifically because doing so would be contrary to the idea that a pet's life does not equal a human life, and a pet cannot act as a beneficiary with standing in enforcement of a trust.

"[According to the courts], pets are like the dining room table," says J. Alan Jensen, a Portland, Ore., based tax and estate planning attorney. "The pet is a personal possession: they are tangible property of the owner."

Pet owners might take offense to that statement, as a study by the Delta Society showed. About 87 percent of pet owners surveyed said they view their animals as family members. Not surprisingly, a 1999 USA Today article reported that between 12 percent and 27 percent of American pet owners have included their pets in their wills.

People magazine reported that British singer Dusty Springfield's will made strict provisions that her cat, Nicholas, be fed imported baby food, and her songs be played at his bedtime. American Tobacco Company heiress Doris Duke left a trust in the amount of $100,000 to her dog. It is alleged that Oprah Winfrey's will mandates that her Cocker Spaniels will live out their lives in luxury.

"This has been an area that I would describe as under the legal radarscope," Jensen said. "There have been lots of cases involving the care of pets and the use of the decedent's property to care for a pet that survives. But the situation really has not been dealt with in any coherent fashion."

In 1990, the National Conference of Commissioners on Uniform State Laws added a section to the Uniform Probate Code to validate "a trust for the care of a designated domestic or pet animal and the animal's offspring." Currently, California, Oregon, Alaska, Kentucky, New York, and Wisconsin enforce pet trusts, that is, monies and/or property set aside to care for an animal, not to exceed a time frame of 21 years. Usually imposed is an honorary trust, where a personal representative had been chosen before to take care of the animal. An honorary trust is one that depends on the willingness of the trustee to implement it.

Pet owners who live in states that have not adopted the probate code enforcing honorary pet trusts can just as easily write the pet, and the intended new pet owner, into their wills.

"The owner of his or her will can designate a beneficiary to inherit the pet," Jensen said. "But, there's no stopping that person from giving the animal away the next day, or refusing the inheritance. It is critical to have a discussion with the people [to whom] you look to care for the animal."

Not uncommon are organizations willing to be the animal's caretaker when family and friends cannot be. The Society for the Prevention of Cruelty to Animals of Texas offers the Pet Survivors Life Care Program, wherein the pet owner arranges for a gift to the SPCA in an estate plan, funded either by life insurance, real estate, appreciated securities, or a bequest in a will. A minimum payment of $10,000 ensures that a pet will be placed with a loving family, and given lifetime monitoring and health care by the SPCA Quality Control Department and veterinary staff. The Kansas State University College of Veterinary Medicine offers the Perpetual Pet Care Program, similar to the Texas SPCA's, for a minimum gift of $25,000.

Organizations such as the Humane Society of the United States and animal shelters offer information and guidance to pet owners looking to prepare for their pet's future without them.

In addition to the family attorney, Jensen thinks the family veterinarian is a natural resource to start consulting about pet estate planning.

He thinks veterinarians should be aware of their state pet trust laws, or lack thereof. Slowly, Jensen said, laws are changing to help animals.