Pets have become integral and beloved members of millions of families across North America. We provide them with special diets, unique toys and even grieve heavily when they pass away. Unfortunately, many dedicated owners fail to consider what might happen to their pets if they are suddenly unable to care for them.
Historically, this was never much of a concern. Pets have always been considered “property” by state and national governments and so when a person died, their possessions, along with the animals they owned, were disposed of as directed by the person’s will or by the probate court handling the estate.
In today’s society though, pets are thought of as much more than property. Although they still don’t have a different legal standing, most people will agree that their pets should be handled differently than their car, furniture or other material items. It’s a sad fact that many senior citizens who might benefit from the companionship of a pet actually avoid bringing an animal home over concerns of care should the pet survive them.
Over the ages, many people have tried to incorporate special provisions into their wills for their pets. English Common Law actually began to recognize pet trusts as far back as 1842. But it’s only been in recent years that true strides have been accomplished.
The first problem to overcome was that of the legal hurdle that “property cannot legally own property”. This means that the animal (property) cannot receive money (more property) in a will for its continued care. In a similar manner, a pet cannot be named a beneficiary of a trust. But, in the 1990s, the National Conference of Commissioners on Uniform State Laws saw the need and changed the Uniform Probate Code to actually permit pet trusts. To date, 45 of the 50 U.S. states allow an owner to create a trust for their animals.
The next, and probably bigger issue, is to educate pet owners about their options. Failing to consider what to do with your pet in the event you are unable to care for him or her could lead to your dog, cat or other pet ending up in a shelter or with a new pet owner. While these situations could work out just fine, some relatives or individuals may not be willing or able to provide proper care. In addition, the pet itself may not adjust well to the new environment, leading to behavior issues or even early euthanasia.
Pet trusts actually provide many benefits. First, since trusts are valid even while the owner is still alive, even if he or she is disabled or incapacitated. This simple fact allows the pet’s care to continue without the necessity of going through probate. Leaving money to your pet in a will might provide some resources, but the amount is subject to interpretation by the courts.
In addition, if the owner needs to move to an assisted care facility or nursing home, a pet trust is valuable in helping to keep the pet and owner together. This alone is a powerful reason to consider setting up a trust for your beloved animal.
Finally, and perhaps most importantly, a pet trust is administered by a trustee (separate from the pet’s caretaker) who has a legal obligation to follow the guidelines set forth by the owner. This helps insure that your wishes for your pet are carried out and helps minimize the potential for fraud. You will want to make sure you have selected a willing and trusted person as the caretaker before the time for one is needed.
As with any legal matter, you should discuss the potential for creating a pet trust with your attorney. He or she can guide you through the legal ramifications and tax situations and help you draft a document that is enforceable and allows your pet to receive the right type of care in a safe environment. Your veterinarian may know of attorneys who specialize in these sorts of trusts or even resources that will help you provide for your pet after you are gone.