by Michael Gordon, Partner

People love their pets.  While states may classify pets as property, to most pet owners, they are certainly not that. They are our children and beloved members of the family.

And like our human children, pets need to be provided for, while we are here, and when we are not.

Just the phrase “estate planning for pets” conjures up images of sensational headlines, of large estates being left to pets, like the bequest of $12M that Leona Helmsley  left to her Maltese Trouble and the future inheritance contemplated in Oprah Winfrey’s will , which provides $30 million for the care of her dogs. While the amounts are sensational, the concept is not. Life can change in an instant and for the elderly, it is likely that the pet will either outlive the owner or outlive the ability of the owner to care for the pet.  If we love our pets, it is essential that we make provision while we are here for someone to care for them as we wish if and when we are no longer able to, through our death or disability.  There are four ways, two not very good, one good and one very good that such provisions can be made.

The first way is to simply assume that as pets have shorter lives than humans, the owners will outlive the pet. Thus, no plans are needed.  The problem is that life can change in an instant and if there are no plans made, there may be no one who will take responsibility for the pet. Consideration given to pets is especially prevalent for the elderly, who at a later stage in life, may have an especially close attachment to their faithful companions. Additionally, at such a late stage in life, the death of a single or widowed senior can have especially serious ramifications for pets.

The shelters are full of pets whose owners did not provision and assumed their families would adopt or find homes.

The second way, slightly better than the first, is to make arrangements. a verbal agreement is better than nothing, but such agreements carry no legal weight and often no commitment.   The person may agree when asked, but when the time comes, often decades later, the person may be no longer willing, or able to take the pet or care for him.

It is not uncommon for family members to not want to take their mom’s elderly animals.  The shelters are sadly full of these two two legal ways, and both are better (i.e. more likely to secure the objective  ) than  verbal agreements that Aunt Mary will take Fido after you are gone or  assuming that since owners often live pets, there is no need to make provision.  The shelters are sadly full of pets whose owners made no provisions or for whom the provisions they made fell through.

The two best ways are using legal tools to ensure the welfare of your pet.  There are two documents used in estate planning for pets: The Will and a Pet Trust. There are pros and cons associated with each but either is better than assuming that family and friends will step up to the plate or having a verbal agreement.

The Will

A will disburses property and while it hurts all of us to think of our pets as property, so they are in the eyes of the law.  It is important to not only name the person who will be the new owner but also provide the funds for the pet’s continued care.  It is of course essential to make sure that you have spoken with this person and that he is willing and able to take care of the pet.

Often, pets are simply given away as a gift in a will to the intended future caregiver, possibly along with a monetary gift which is granted with the understanding that the funds are to be considered compensation for the future costs of care of the pet in the hands of the recipient.

It is of paramount importance that pet owners openly communicate their last wishes for their pets with friends and relatives and consider including precatory words in a will, expressing a testator’s non-binding hopes and desires with regards to who and how of the maintenance of their pets is to follow. While such clauses have no true legal force, simply due to their insertion in a will, they often carry great weight and act as a formal direction to executors of a will and future caregivers. Precatory wording can be particularly effective if the included notions have been discussed with relatives and friends ahead of time. Apart from any legal issues, there are some practical concerns that a pet owner should carefully consider when trying to choose an appropriate successor owner/ caregiver:

• Does the person have the disposition to be a pet owner?
• Would the person’s schedule allow for adequate care? How would travel and vacations factor in?
• Is the person physically up to the task?
• Are there any safety issues (to pet or people), particularly where there are young children in the home?
• Are there allergy issues?

Is there space to care for the pet? Do condominium or housing rules allow pets?  What are the municipal bylaws in the case of exotic pets? (See sidebar — Lions ’n’ tigers ’n’ lizards, oh my!)

And then there is the matter of money. As any pet owner can attest, there is the cost of food, accessories, heath checkups, emergency medical care, and possibly boarding when the owner is travelling. Multiply this by the number of years the pet has left in his or her life and you’re talking about a heavy financial burden on an individual or family. On top of that, there can be a significant time commitment for which, in fairness, one should be compensated.

If the pet owner is concerned that the caregiver may fail to fully carry out their wishes, it’s certainly possible to establish a trust to provide for the cost of the pet’s upkeep. The compensation to the caregiver would then be based on continuing to provide the appropriate care. Of course, this would bring into question whether the right person has been selected, not to mention the complication and cost of drafting the trust and providing for its proper administration.

If you do not have another person to name, a group of people can be named who will be tasked with finding the pet a good home.  It is also prudent to include as specifically as possible a list of conditions,  doctors , foods, vendors and anything else you think would help  the new owners ease the transition for your pet and make his or her new life as much as possible like he enjoyed with you.

Another best practice is to name a second person, in the event the first person is nto able or willing to take care of the pet. Wills are often make decades before their use…and by then the situation of a beneficiary may have changed.

Finally, besides a second person, a fall back, it is wise to name a group of people who will be tasked with finding the pet a good home, in the event that neither of the other two can accept the responsibility.

The biggest drawback of the will is also the biggest misconception.  People think if it is in a will, this will happen upon the death of the person. This is not so. A will is not binding.  It states your wishes and disperses your property, but it cannot enforce your wishes.  the person you have designated as the new owner, the benefactor, is given the pet and funds.  Once he or she receives this property, he can care for – or not care for the pet as he wishes.  There is no legal binding requirement that the new owners use the dollars for the purpose they were intended or even keep the pet.

One more drawback deserves mention. A will does not take effect immediately. In MD, it can be nine months or more before fund are dispersed.  There should be provision made for this interim period, between the death of the person and the will being probated.

• Instructions in a will are not enforceable. Wills disburse property:  Sue gets the house and the dog. A will cannot force Sue to keep up the house she now owns. Nor can it enforce instructions for the care of the dog. She now owns both and can care for them – or not- as she sees fit.
• Wills are not put into effect immediately. There is always a waiting period between the time of death and the reding of the will and the time when the property transitions to the new owners.  Who owns and cares for the pet in this interval, before the will is probated? Where will the pet be held during this waiting period? Moreover, if the will is disputed, or a host of other issues arise, the final settlement can be prolonged even future. I Maryland , it takes mimum of nine months for the will to go through probate. If Issues arise, it can take longer,. I have known cases to prolong as much as ____ years. Who takes care of the pets in that interval of legal limbo?
• Wills do not allow disbursement over a pet’s lifetime.  The beneficiary, the new owners, get the dollars at the time of distribution.  If a pet owner want ssome control over the distribution, to help ensure that there are always funds though the pet’s lifetime for a certain evel of care, the wil is not the vehicle to do this. This can be achieved with a free-standing traditional pet trust or pet protection agreement.
• Changes to the will are in the court’s discretion. Who do you want deciding the fate of your clients’ pets: you or a judge?
• Wills make no provisions for incapacity.  What if the pet owner is disabled due to sickness or injury.  A will kick in at death so it cannot address the possibility that the pet may need to be cared for during the owner’s lifetime in the event of his or disability.
• Pet provisions in a will may be “honorary.” Forty states and the District of Columbia recognize statutory pet trusts; in these jurisdictions, pet owners who include a simple directive in their will (e.g., “I leave my dog Soupbone and $5,000 for his care to my friend Jane”) can be assured that the funds and pet will remain together. In the ten states without statutory pet trusts, however, these provisions are “honorary.” The person who receives the funds decides whether or not to use them for the pet’s care. There is nothing to prohibit the “trustee” from dumping the pet at the pound and using the money to go to Paris.

The presence of these pitfalls does not mean that wills should never include a provision for pets. Rather, it means that such a provision should be supplemented by a pet trust and/or pet protection agreement.

Still, a will is far better solution than estate planning by assuming friends and family will accept the pet or verbal agreements. Just putting the language in a will can carry force with relatives and friends, especially if you have spoken to the family and friends and let them know your wishes. There are some collateral issues and unintended consequences.  There have been cases in which funds were set aside to continue through the life of the pet, and the pet was then kept alive far longer than is humane  in order for the cashflow to continue.

Pet trusts. Unlike a simple directive in a will, a pet trust provides a host of additional protections and advantages:

• Pet trusts are valid during the pet owner’s life and after his death.
• Pet trusts can help preempt problems with substantial and involved estates. Pet trusts are particularly useful if the client expects a contest to the estate—for example, if the amount left for the pet’s care is enough that someone will contest the client’s capacity, or if there is a litigious family member whom the pet owner believes may dispute the final documents.
• Pet trusts and pet protection agreements control the disbursement of funds.  This ensures that the owner’s wishes are met.  It is an extra level of protection that the money will spent as intended.   No good person, upon the bequest of ap et in a will, would find fault with this…they would understand that this is how they would want their pet be treated. I have never had a single person who had a pet trustee find fault with the oversight of a trustee.  They understand and would want the same to be done for their pets.  Questions arise as to how good an owner or someone would be who would object to basic oversight.
• Pet trusts allow for an investment trustee. A trust protector (separate from the pet guardian or trustee) can be appointed to invest funds with a view toward growth of the principal and future use on behalf of the pet, heirs, and charitable recipients.  This is important too because the person caring for the pet does not have sole discretion over the use of the money. A trustee is an added layer of assurance that the dollars set aside for the care of the pet are being spent as intended.  Conversely, if the pet is being kept alive inhumanely to keep he dollar flowing, a pet trustee can make sure that this does not occur.
• Pet trusts and pet protection agreements allow provisions for incapacity. They ensure that the powers and pet can remain together through the owners disability, even in the event that your client moves to a nursing home or other long-term care facility. Studies have shown that seniors and those with health issues receive increasing benefits from their pets—lower blood pressure, increased exercise and circulation, reduced anxiety and stress, boosted mental acuity, enhanced opportunities for social interaction, and decreased loneliness. The New York Times has reported that nursing home residents live longer when a pet is present. With a pet trust or pet protection agreement, owners may even leave a portion of the funds remaining after the pet’s death to the facilities that kept the owner and pet together.

The potential benefits of a pet trust:

• Ensure that the pet owners and pet will remain together though the owner’s disability
• Provide protection and care of your pet in your absence
• Eliminate financial burdens on pet’s caretaker
• Enforce owners’ instruction so pet is given love and devotion you want for him or her.

A Pet Trust avoids this drawback of a will. But as with most things in life, the best costs more.