Legal Article | Estate Planning for Your Pet
By Hoge Fenton | 02.1.2022 | Estates and Trusts
Many of us consider our pets as part of our family. As such, you may want to arrange for your pets’ support and care in the event you become unable to personally provide for them. Estate planning provisions that provide for the support and care of pets that may outlive you can be included in a will or trust agreement. Existing estate planning documents can also be amended to add these provisions.
In California, animals cannot own property. Therefore, you cannot leave assets to your pets outright. In the Estate of Russell (1968) 69 Cal. 2d 200 California courts said that an outright gift to an animal is void. In Russell, the testator’s dog could not be a beneficiary of the testator’s will; California law limited disposition of property to “any person.”
So how can you arrange for your pets’ support and care? One way is through a pet trust. Other options include gifting to a trusted person or continuing pet care programs. The three options are described below.
Outright Gift to a Trusted Person
One option is an outright gift of your pets along with funds to support your pets. You may leave your pets to a trusted friend or relative along with a cash gift. This can be done in a revocable trust or a will. There are drawbacks to this approach: the beneficiary of your pets may decide to use the funds for some other purpose, and there is no assurance that the person receiving your pets will keep and properly care for them.
Continuing Pet Care Programs
Various “continuing pet care programs” offer care after a pet owner’s death. For example, in return for annual donations or a testamentary gift, the San Francisco Society for the Prevention of Cruelty to Animals (SFSPCA), through its Sido Program, provides continuing care including medical and placement after a pet owner’s death. The SFSPCA’s Sido Program was inspired by Sido, a dog whose owner, believing that no one could care for her pet as well as she, provided in her will that at her death Sido be humanely euthanized. The SFSPCA successfully challenged provisions of this will.
The Pet Trust
Over 42 states have enacted statutory pet trust legislation. California specifically authorizes creation of a trust for the care of animals, and defines animal as “domestic or pet animal.” Pet trusts are valid as enforceable trusts and may exist for the lifetime of the animal. The law provides for enforcement mechanisms by persons or entities named in the will or by the court, which has the power to appoint a person or entity, including an organization that has as its principal activity the care of animals, to enforce the trust. Periodic accountings, reports, or registrations are not required for trusts with assets not exceeding $40,000, unless ordered by the court or required by the trust instrument. If required, accounts are to be provided to the persons who would receive the unexpended property if the pet were deceased.
A California pet trust must terminate when no animal living on the date of the settlor’s death remains alive. The trust instrument should specify how the remaining trust corpus should be disposed of at the pet’s death; otherwise, the assets will be distributed as provided in the residuary clause or distributed to the trustor’s heirs.
A pet trust can also come into play before your death if you were to become incapacitated and unable to care for your pets. The provisions in a will do not have any legal effect until your death.
A California attorney can assist you in drafting a pet trust. Some of the decisions to think through in this process include:
- Choosing a caretaker. This is the most important decision to make. This person will have custody of your pets and be responsible for day-to-day care. Always ask the person you consider naming if they are willing to take on this responsibility. Name an alternate as well, in case your first choice isn’t available when the time comes.
- Provide specific instructions for the caregiver. Describe in detail your pets’ standard of living and care. Document, for example, their favorite foods, favorite toys, and sleeping arrangements.
- Be sure to adequately identify your pets, such as through microchips, to prevent fraud.
- Determine the amount of funds needed to administer the pet trust. Consider your pets’ ages and conditions. If the amount you set is unreasonably high, family members may challenge the trust in court, and a judge might reduce the balance of the pet trust. In 2008, a judge reduced a trust fund for Leona Helmsley’s dog from $12 million to $2 million providing the difference to go to Ms. Helmsley’s foundation.
- Provide instructions for the final disposition of your pets, for example, burial or cremation.
- If you leave California, consult with local counsel to determine whether your pet trust must be modified in your new place of residence.
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