I have a beloved puppy, as well as a few cats and a parakeet. How do I ensure my animals will be well taken care of if something happens to me?
Domesticated animals and pets have gained increasing prominence in our lives. Sometimes, pets assume as much importance in our lives as children, even more so in the case of clients without children. Many clients ask how they can ensure that their beloved pets are properly cared for after death. This is far from an unusual or uncommon question. For many people, the care and well-being of the pet is a very important consideration in their estate planning.
When considering how to plan for the care of a pet, a pet owner should not only consider what should occur in the event of his death, but also what arrangement should be made during the interim period between his death and the admission of the will to probate, as well as in the event that he should be hospitalized or incapacitated? In other words, you should arrange for access to your home to permit the care and feeding of the pet during such periods.
A will can make provisions for the care of the pet, but the executor cannot officially take action to carry out these provisions until the will has been admitted to probate, and the executor has received the authority to proceed by the issuance of letters testamentary. Since there can be a period of weeks, if not months, between death and the issuance of letters testamentary, plans should be made to ensure the care for the pet during this interim period.
You can designate a suitable caretaker for your pet in your will. This matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. It should be noted that the person who receives an animal as the result of a bequest in a will becomes the owner and, as such, has all the rights and responsibilities of ownership (including the right to euthanize the animal). It is prudent to name alternate caretakers in the will in case the first-named person is unable or unwilling to take the animal when the time comes. Alternatively, the will can provide the executor with the discretion to select an appropriate caretaker.
Since you cannot leave any part of your estate outright to an animal, you may leave a sum of money to the person designated to care for the pet. You should leave a reasonable amount of money for the care of any pet, since a large sum of money could prompt relatives to challenge the will. If the bequest is conditioned upon the beneficiary’s proper care for the pet, the executor will be obligated to ensure that the person receiving the bequest fulfills her commitment.
If there is no appropriate person to take the pet, you should consider naming a charitable organization (such as a humane society or shelter) to care for or place your pet.
New York law also provides for the creation of a trust for animals (sometimes called a pet trust). A pet trust cannot exceed 21 years, even if the life span of a particular animal is longer. (Turtles can live 50 or more years; horses have a life expectancy of 25 to 40 years, and some cockatoos can live as much as 80 years!) The trustee appointed in the trust will be directed to the trust instrument to use the funds to care for the animal.
It may also be advisable to include a provision in a will that permits the executor to use estate funds to care for the animal for the period before the animal goes to the new home you designate. The will should state that the costs of food, veterinary care, transportation, and other expenses incurred by the executor is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes.
A concerned pet owner might also consider keeping a short written note in his wallet containing emergency instructions in the event that he is injured or hospitalized and unable to return home to care for his pet. The fire department also offers stickers to place on the windows of your apartment or home to alert them that animals are inside in the event of fire.
In short, the best way to assure proper care for a pet is to make both short-term and long-term testamentary arrangements for your animals as part of your estate and crisis-planning process.
Alison Arden Besunder is the founding attorney of the Law Offices of Alison Arden Besunder P.C., where she assists new and not-so-new parents with their estate-planning needs. Her firm assists clients in New York City, Nassau, and Suffolk Counties. You can find Besunder on Twitter @estatetrustplan and on her website at www.besunderlaw.com.
