A national movement is growing that make affect the relationship between you and your pets.
Some people want to distinguish between a pet “owner” and a pet” guardian.”
A guardian is one who is legally responsible for the care and management of the person or property of an incompetent or a minor.
An owner is someone who controls or possesses something, as property.
The supporters of changes in guardianship laws claim that “owners” consider pets as easily dispensable, but that “guardians” will treat animals with more care and concerns.
Proponents want to eliminate ownership of pets and have them recognized as in their “own right.”
The American Veterinary Association definitely takes an opposing position to this change with this statement:
"The American Veterinary Medical Association promotes the optimal health and welfare of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners, including "guardian," does not strengthen this relationship and may, in fact, harm it. Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering."
While others argue that if pets’ owners become guardians, it will be easier for others to monitor and control them because a guardianship may be temporary and/or revoked.
This argument is more than a matter of linguistics; it could determine your relationship with your pet.
Keep yourself appraised as this issue evolves.
I spoke with a dog owner yesterday about some estate planning for her Boxer named Molly.
Molly’s owner, Mandy, told me that her only relative is a brother that she has not spoken with for years, and she is sure that no matter how she provides for Molly in her will, that the brother will contest the matter in the courts and try to take the money set aside for Molly.
We discussed the option of establishing a trust for Molly, but Mandy was not interested in that avenue.
I then suggested that the will could include an "in terrorem" clause.
“My brother may be a bad person, but he is certainly no terrorist,” exclaimed Mandy.
I smiled and explained that an "in terrorem” clause provides that if a person unsuccessfully challenges a provision in a will, then the challenger cannot receive any property under any other provision of the will.
So, if a court finds that Mandy’s will is otherwise valid, the clause providing monies for the care of Molly will be upheld, despite the protests of her brother.
Mandy’s desire to take care of her dog will be fulfilled.
When an individual dies, their bills must be paid and their assets distributed.
If they die with a will (testate) then the will must be taken to the Probate Court, accepted as a valid document and filed with the Court.
If someone dies without a will (intestate) then each state legislature has established laws to determine who will receive their assets.
In either case, a Personal Representative is appointed and that individual is responsible for collecting all of the deceased assets, paying their final bills, including any taxes due, and then distributing the property, as directed by the will or the legislature.
All of this is subject to the overview and approval of the Probate Court.
The entire estate process can take from a few months to years, depending upon the state laws and the estate complexity.
A Trustee is a person or an organization (i.e. a bank) that holds or manages and invests assets (property or money) that are owned by a Trust Agreement for the benefit of another. The Trustee is legally obliged to protect the assets and distribute them according to the terms of the Trust. The duties and responsibilities of the Trustee are set out in the Trust Agreement and many states have statutes that also govern the activities of the Trustee. The Trustee may or may not be entitled to a payment for their services, depending upon the Trust language.
A will is a legal document that contains your instructions and wishes as to how to distribute your assets and property after your death. The person who writes a will is called a testator. The will can also appoint individual’s that can serve, if necessary, as a guardian for your minor children and nominate a personal representative to carry out the instructions of your will. Each state has minimal legal requirements that must be followed for a will to be valid and accepted by the courts. But generally, the will must be made by a competent adult, it must be in writing and signed by the testator and witnessed by a least two other individuals and a notary.
You can include a clause for your pets in your will with the appropriate language, but you need to be fully aware of the possible limitations and drawbacks. In some circumstances, the preparation of a pet trust is more appropriate in your estate planning for your pet. Today the majority of states accept and recognize some form of a pet trust.