USING A WILL OR TRUST TO PROVIDE FOR A PET OR OTHER ANIMAL

The question of how to care for your pet at your death or if you go into a nursing home becomes more difficult. Further complicating the decision process may be the question of whether or not your pet should be euthanized upon your death or incapaci

Albany, NY (prHWY.com) June 25, 2012 - Let us assume that you are a client with a companion pet (or other companion or farm animal, such as a horse). If you are young and have a family, it might be relatively easy to decide how your pet should be taken care of when you die or if you become incapacitated. In most such cases, you would have family or friends who would be willing to take in your pet and care for that pet, whether or not you pay them for doing so.

However, if you are an elderly client, living alone, and have a companion pet, you may not be so fortunate in your circumstances. The question of how to care for your pet at your death or if you go into a nursing home becomes more difficult. Further complicating the decision process may be the question of whether or not your pet should be euthanized upon your death or incapacitation.

If you are fortunate to have a relative or a friend who would take in your pet, you could leave that relative or friend a sum of money with the understanding or agreement or condition that the relative or friend care for your pet for its lifetime. However, such an arrangement is difficult to enforce. If you were to make this provision in your will, the person who would be in a position, or at least have the authority, to enforce the gift of your pet and the sum of money would be your executor. However, it may not be practical to ask your executor to keep an eye on how your pet is being taken care of for the next five or ten or fifteen years.

You could leave your pet or animal to a shelter or a charitable organization such as an animal humane society, along with a cash bequest. However, if you were to consider doing so, you should carefully investigate the animal shelter or charitable organization to see what their practices are and how well the animals are taken care of, what efforts are made to place pets for adoption and whether or not there is a history of complaints being filed against the shelter or charitable organization.

Probably the best way to provide for your pet, that is, the method by which you would have the most assurance that your pet would be taken care of, is to create a trust for the benefit of your pet. A trust for the benefit your pet or a domestic animal, such as a horse, is specifically authorized by statute in New York. The trust may be created in your last will and testament or may be created by trust agreement during your lifetime.

In the trust document, or in your will, you would name a trustee and, if possible, an alternate trustee, and you would name a separate caretaker to care for your pet. The caretaker would be a person other than the trustee or a shelter or charitable organization.



You would fund the trust with enough money to care for the pet or animal during its lifetime, including shelter, food and veterinary care. You would of course have to spend some time in calculating the amount necessary to be placed into the trust.

The trust agreement or your last will and testament would also name a remainder person or shelter or charitable organization to receive whatever may be leftover after your pet dies. If you name the trustee or the caretaker as the remainder person, there is a dilemma - on the one hand, there would be a conflict in that the more money that is spent on the pet, the less there would be leftover when it dies. On the other hand, naming the trustee or caretaker as the remainder person may give them some incentive to agree to act as trustee or to take care of your pet or other animal.

If you do create such a trust in your will, keep in mind that there is a "gap period" between your death and the time when your will is admitted to probate. During this gap period, no executor has been appointed ("to probate a will" includes the court issuing letters testamentary to the person named to be executor) and hence there is no one in authority to make decisions concerning your pet or to spend money to care for your pet. To take care of this situation, you may wish to leave a letter of instructions and some money with the person you would like to have take care of your pet during this gap period. In the alternative, you may make a provision in your last will and testament to reimburse whoever takes care of your pet during this gap period.

Finally, a frequent question will be, may your will or your trust for the benefit of your pet direct or authorize someone to euthanize your pet at your death or at your incapacitation, or upon your going into a nursing home? While I am unable to find any reported cases in New York, it would seem that it would be difficult to enforce such a provision. On the one hand, the person caring for your pet and probably most veterinarians would be resistant to the idea of euthanizing a healthy animal and, further, it would seem that the courts, as a matter of public policy, would also be resistant to the idea of euthanizing a healthy animal.

In sum, while there may be no perfect way to provide for your pet at your death, it would appear that the use of a will and of a trust, either by a stand alone trust agreement or by a trust created in your will, offer the best solutions.

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Tag Words: revocable trusts

Categories: Law

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