An estate planning issue that has not historically received a lot of attention but has become higher profile lately involves providing for pets. While many pet owners consider the family dog or a fluffy kitten to be part of the family, the law treats animals as chattel (i.e. property). Some people assume they can leave their pet to someone in a will along with property or money to care for the pet that may have provided years of companionship and fond memories. However, estate planning for pets requires more consideration than just a mention in a will.
The media tends to ignore estate planning for pets unless they are mocking a celebrity for leaving large estates to a pet rather than family. A notorious example of such an estate plan involved Leona Helmsey. She left millions of dollars to provide for the care of her dog. Despite the notoriety of her estate plan, many people failed to recognize that the remainder of her estate was left to charities that provided for the care of animals. This type of provision is common in estate plans that provide for pets. Helmsey’s situation also is worth noting because her instructions were disregarded because she had inadequate legal advice. We have provided some suggestions for more effective estate planning if you have a pet.
Although you can certainly indicate the person you want to provide care for your pet in a will and leave money to this individuals to provide such care, this approach presents a number of problems. One important issue is that the instructions provided in a will are not binding. The function of a will is to disburse property, but the will cannot force recipients to handle the property in a particular way. This limitation of a will means you also cannot specify long-term arrangements to be carried out over the lifetime of the animal.
Another drawback to using a will is that the probate process takes time. If you rely exclusively on language in a will to provide for your pet, there will be no one designated to provide for the pet until the will is administered. The process of administering a will can take months and even longer if the will is contested. Even if a family member or other loved one steps up to voluntarily care for a pet, any bequest in the will to provide for the animal will be tied up until the will is administered.
Although these reasons should be sufficient to make alternative arrangements for your pet, there are still other disadvantages associated with relying entirely on a will. If you become temporarily incapacitated so that you cannot care for your pet, a will provides no assistance because it will not even be administered prior to your passing away. Depending on the state in which you reside, your pet and a monetary bequest for the care of your pet will pass together to the person you designate. However, in other states such a provision is only “honorary.” This means that the person who receives the pet can take the pet to the pound and use the money to take a cruise.
If you want to provide for your pet, a more effective approach is to establish a “pet trust.” An experienced estate planning attorney can set up a trust for your pet that accomplishes all of the following:
- Provide instructions for the care of your pet by a trustee that you designate who has a fiduciary duty to comply with the terms
- Allow money or property to be disbursed over the lifetime of your pet
- Permit appointment of a trustee to manage investments of the funds or property intended for the care of the pet independent of the person made the trustee for care of the pet
- Authorize the trustee to provide for the pet even if you are incapacitated
If you have questions about estate planning in Kansas, we welcome the opportunity to talk to you and answer your questions. We invite you to call the Weber Law Office at (316) 265-7802 or to submit an inquiry form through this website to schedule your initial consultation with an experienced Wichita Estate Planning Attorney.