By JUDD MATSUNAGA, Esq.
To my 90-plus-year-old parents, their two labradoodles are part of the family. In fact, many seniors consider their dogs part of the family. So, they naturally want to include them in their will or trust. However, you can’t leave money or assets to your dog. So don’t try to give your house to your dog.
In the eyes of the law, pets are considered property, and one piece of property cannot own another piece of property. If you die without making plans for your pet, your property (pets included) are subject to your state’s “intestacy” laws. Most likely, your dog (or cat) will probably be put in a shelter instead of being cared for by a family member or friend.
The good news is that you can use your estate plan to make sure that your pet has a good life after you’re gone. You can use your will or trust to make sure that: (1) your pet goes to a caring person or organization, and (2) the new caregiver has the resources to take good care of your four-legged friend and companion.
According to the online legal website, nolo.com, you have a range of options for your pet’s life after your death – from making a simple, non-legal arrangement, to making a complex trust, to leaving your pet with an organization dedicated to taking care of pets after an owner’s death.
To make any of these arrangements, you first need to find a pet caretaker, i.e., a person or organization that you trust to care for your pet. You’ll want to choose someone who is capable and who loves your dog (or cat) as much as you do. Think of a close family member or friend. Make sure they have been around the pet so they know what they are getting into.
Make sure whoever you pick is responsible. It’s better to choose a trusted neighbor than a child who isn’t around very often. It is always a good idea to speak with the person you are considering, making sure he or she is willing to act as your pet’s caretaker. If possible, name an alternate as well. Your preferred long-term caregiver might move, die before you, or change their mind.
Write out instructions for how to care for your dog. Include information such as a feeding schedule and walk times. Provide these emergency caregivers with keys to your home so they can easily access your pet. If you have more than one dog, try to choose a caregiver who can take all of them. It is especially important to keep animals together if they have bonded.
Don’t despair if you can’t find anyone who agrees to serve as a caregiver. If you’re not able to find a person both willing and able to take care of your pet after you die, you’re not without options. Programs exist across the country that allow you to leave your pet to a trustworthy caretaker after you die. For example:
● SPCA programs (Society for the Prevention of Cruelty to Animals)
● Veterinary school programs
● Private animal sanctuaries and rescue organizations
● Pet retirement homes
Pets in Your Will — The easiest and most flexible arrangement for your pet doesn’t require much in legal formalities. If you fully trust your executor and the person who will care for your pet, and you are confident that no one else will claim ownership of your pet, simply tell your executor who should care for your pet when you die. As long as everyone involved is in agreement, there will be no problem for your pet to go to your chosen caretaker.
For example: Tak’s health is failing and he’s concerned about what will happen to his 4-year-old lab, Bruno, when he passes. He talks to his brother Mas about taking Bruno after his death. Mas knows and loves Bruno and would like to take him, but he is on a very tight budget and is not sure how he’ll pay for Bruno’s food, vet bills, and occasional boarding. Tak decides to use his will to leave Bruno to Mas, and he also leaves Mas some extra money for Bruno’s care.
The clause in Tak’s will might look something like this: “I leave my dog, Bruno, and $,2,500, to Mas, with the hope that the money will be used for Bruno’s care and maintenance. If Mas does not survive me, I leave Bruno and $2,500 to Joyce, with the hope that the money will be used for Bruno’s care and maintenance.”
This type of arrangement is legal in the sense that Bruno will legally belong to Mas. However, Mas will have no legal obligation to use the money on Bruno – he will receive the money outright. If he used the money to go on a cruise, repair his car, or play the lottery, there would be no legal recourse.
Pet Trusts — A stronger, more complicated, and more expensive legal option is to make a pet trust. In 2009, California Senate Bill 685 went into effect, aimed at protecting animals after the deaths of their owners. This law provides the legal basis to make certain that the careful planning of pet owners is carried out and that pets continue to be cared for and safeguarded even after the passing of their owners.
“Pets are an important part of the American family,” said Sen. Leland Yee (D-San Francisco/San Mateo), who authored the bill. “This law makes pet trusts enforceable and assures that the wishes of the pet owners are respected.” Yee added. “Under this new law, a pet owner will be assured that their pet will be properly cared for after their passing while also ensuring that kin are not burdened with undue pressure.”
Pet trusts are available in all states. California state law allows you to create a pet trust to allocate funds and any wishes on behalf of a pet. You act as trustee during your lifetime and then name a successor trustee for after you pass. The terms must be clearly expressed concerning the pet’s health care, veterinarians, burial, and how any remaining funds should be designated when the pet ultimately passes away.
The trust will include an explicit designation of which pets you want the trust to cover. You can only select pets that were alive at the same time that you were. That is, you cannot set up the trust to care for unborn offspring or future pets. The trust itself will dissolve when the last surviving animal passes away.
The trust documents will also include specific instructions on how you would like the trustee to care for your pet. The instructions can range from where your pet should live to the particular type of food that your pet should eat. Caretaking instructions are often incredibly detailed in pet trusts. They may even include specific information about favorite toys and blankets to use.
The trust documents will also contain information on how much money should be in the trust to provide for your dog when you are gone. You’ll need to set aside some money for necessary expenses such as food, vet care, grooming, and other expenses, such as boarding if the caregiver is traveling.
To find out how much to leave, you should add up how much you spend on your dog in a typical year. Then multiply this amount by the number of years you can expect your dog to live.
The website PetMD has a chart listing the average lifespan of different dog breeds. The chart is available here: http://www.petmd.com/dog/wellness/evr_dg_how_long_do_dogs_live
Another instruction that your pet trust should cover is whether or not your pet should be euthanized. For example, you can write, “If the dog (or cat) is not in generally good health or is suffering, then it shall be euthanized and cremated if good health cannot be restored with veterinary medicine.”
In conclusion, a pet trust is a lot like a will. You will identify a caregiver and then set aside money to be used for your dog. With a will, the executor gives your pet to your designated caregiver and that’s it. No one checks up on your dog. You can’t really enforce instructions in a will. Therefore, your caregiver can ignore your instructions in a will.
However, with a pet trust you can leave your pet, money, and a legal obligation to care for your pet. With a trust, a person called a “trustee” holds and manages the money. A trustee can continue to check in on your dog. If the caretaker fails to follow your instructions, he or she can be sued.
The disadvantage of a pet trust is they are likely to be more expensive and provide more planning and structure than you need if you trust your named caretaker. If you choose a pet sanctuary or the like, however, a trustee could check up on your pet to make sure they are being well cared for. A qualified attorney can help you decide which is best for you.
Judd Matsunaga, Esq., is the founding partner of the Law Offices of Matsunaga & Associates, specializing in estate/Medi-Cal planning, probate, personal injury and real estate law. With offices in Torrance, Hollywood, Sherman Oaks, Pasadena and Fountain Valley, he can be reached at (800) 411-0546. Opinions expressed in this column are not necessarily those of The Rafu Shimpo.