I have a new dog named Maggie. I grew up with beagles, then as an adult had a series of cats, and then had no pets at all for the years when I was a renter. Maggie is a two year-old rescue dog, a Maltese mix, weighing in at a little over ten pounds. I’m thrilled to have her in my life.
As you might guess, part of my responsibility as a dog owner is to provide for her in my estate planning documents. With luck, I will outlive her, but what if I don’t? What if I am ever unable to take care of her? These questions ran through my mind as soon as I adopted her.
My Power of Attorney, like those I have done for many of you, says that if I’m ever unable to take care of a pet animal, my Agent is authorized to do whatever is necessary to take care of the animal, including taking her to the vet, paying bills, even finding a new home. Fortunately, I have two Agents, professional fiduciaries who are also named as the successor trustees of my trust, who love animals and would know exactly how to take care of my dog if I ever could not.
What if I die before Maggie does? Is she just property to be passed on like the rest of my stuff? No. Is she a beneficiary? Not exactly. Pets occupy a unique place in estate planning and there are a couple of possible approaches.
California’s Probate Code Section 15212 allows for the establishment of a “pet trust.” An animal is not a person and cannot directly inherit, but a human being may appoint a trustee to hold and administer funds for the care of a pet. This raises many questions: Would the trustee be responsible for managing funds as well as the care of the pet? If the trustee were to misuse funds for her or his own benefit, who would take legal action against the trustee? What happens to remaining funds upon the pet’s death? Is there enough money available in an estate to make the continuation of such a trust cost effective over an unknown number of years? It can get much more complicated than it need be.
I think there’s a better way to go. That is to make an outright gift of the pet to a responsible person or group, along with a generous cash gift to cover the likely cost of taking care of the pet for its life, including the cost of finding that pet a new home.
Many of you who’ve done wills and trusts with me have in your documents a gift provision for the care and relocation of a pet. We write something to the effect of: I give my pet or pets to So-and-So, along with a cash gift of X thousand dollars for the care and relocation of my pet or pets. If I have no pet at the time of my death, this gift shall lapse.
For those of you who are certain that your family or close friends would care for, adopt or relocate your pet, such a provision is probably not necessary. But for those of us who are single and childless, we need to make sure that a surviving pet will be cared for.
Making an outright gift of a pet along with cash requires that we name someone trustworthy, who is able to take our pet in or who knows the lay of the land in terms of pet rescue and adoption groups.
The San Francisco SPCA has a program called SIDO, allowing pet owners, while alive, to register their pets as potentially needing to be relocated to a good home. One of my clients who died recently had registered her cat with SIDO, and upon her death, her friends transported the cat to SIDO for re-adoption.
My preferred approach for Maggie will be to amend my trust with a new provision. I don’t have the wording just right yet but it will go something like this: I give the pet or pets I have upon my death to my successor trustee, along with a cash gift of $5,000 and the request that my trustee house and care for my pet or pets until they can be re-adopted through Animal Rescue Group X or Animal Rescue Group Y.
Just as we give a lot of thought to the beneficiaries of our property, we need to also make sure that our animals will not go uncared for if and when we cannot take care of them ourselves.
