Last week, I noted that estate planning is really the process of planning for death and incapacity, and I suggested ways to provide for your pet in the event you were to become incapacitated or disabled (though, as we saw, a Power of Attorney could be equally useful if you abscond to Hawaii for an extended vacation!). We also know that the authority of an agent under your Power of Attorney expires at the time of your death, so this week, we need to address the 800 lb. gorilla in the room: what will happen to our pets when we die?
For purposes of keeping things relatively simple, the 2 main vehicles you might use to transfer property and wind up your earthly affairs in the event of your demise are 1) a Will or 2) a Trust. Whether you ultimately choose a Will or a Trust (or some combination) will depend upon your personal situation, the laws of your state, and other unique factors you discuss with your estate planning attorney. Among other important things, each of these vehicles provides a means for you to direct the care (ownership) of your dog upon your death. Remember, the law views your dog as property.
Leaving aside important questions about the differences between “ownership” and “guardianship,” and the many potential implications of those legal terms, this has specific, important implications for your estate plan: if you simply leave “all of [your] tangible personal property” to your children “in equal shares,” as is often the case, that will include your dogs. It would also apply to other assets that might not immediately come to mind, such as frozen semen from a cherished stud dog who may have a lot to offer your breed. For our purposes, suffice it to say that you must consider more than one category of property that other people do not have.
While it is becoming more common among the general public for people to take their pets into account when doing estate planning, most attorneys still have little experience with issues that are important to us as “dog people.” Do not be afraid to be explicit with your attorney about issues he or she may not understand: both your pet(s) and the frozen semen (and pedigree records, etc.) need to go to the right people, not simply pass with the rest of your “tangible personal property.”
Providing for one or more pets can be done by including a specific bequest in your Will, leaving the dog to the person you have chosen to care for him. You could include a gift of cash that you ask be used to care for the dog, to ease any perceived financial burden on the caregiver. (It goes without saying that you should choose your dog’s caregiver wisely; however, if you leave a cash bequest, it will be difficult to enforce any stipulation about its use for the dog’s benefit, so it becomes even more critical to select a trustworthy caregiver.)
All states now permit some form of pet trust (Minnesota was apparently the last holdout and recently adopted appropriate legislation), where funds can be left in trust for the care of the pet. This can be useful, since you would appoint a trustee to oversee disbursement of the funds. However, administrative expenses can be costly, and the amount of money involved may not merit this level of oversight.
In the case of either a Will or a Trust, as with a Power of Attorney, you should plan for contingencies. If you are bequeathing pets by means of a Will provision, appoint at least one alternate recipient for the bequest of your pet, in case your first choice predeceases you or is for some other reason unavailable. If you are providing a pet trust, provide at least one alternate trustee. In both cases, be sure to have those difficult, informal conversations about how you want your pets to be cared for when you are gone and follow up by providing the caregiver (and any alternates!) with contact information for your vet and any other pertinent information in written form. Ultimately, you will feel better knowing you’ve done your best for your pets, and most caregivers will ultimately feel better knowing they understand your wishes.
Of course, the examples provided here only scratch the surface of choices you could make with respect to structuring your estate plan, but I hope we’ve provided the motivation to find a qualified attorney and start your planning process. Whichever tools you choose, the take-away message is that planning, trust, communication, and follow-through are the keys to making sure that your dog continues to enjoy comfort and security when you can no longer provide those things yourself.
Disclaimer: This article is for informational purposes only and is not legal advice. I am not your attorney. Your situation is unique, so please consult your attorney or, if you do not have an attorney, locate an attorney who is licensed to practice in your state, stays current on developments in the area of estate planning, and preferably has experience helping other clients make comprehensive estate plans that include provisions for their pets.