What do you suggest the use of a pet trust rather than just including the pet in your will?
Cheryl Boca Grande, Florida
Cheryl, a statutory pet trust is more easily enforceable than a general will clause.
An example of such a will clause is as follows:
...I give my cat, and any other animals that I may own at the time of my death, to Bill presently residing at 123 Main Street, Nowheresville, PP, with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, I give such animals to Bob, presently residing at 124 Main Street, Nowheresville, PP with the request that he treat them as companion animals. If he is unable or unwilling to accept my animals, my Executor shall select an appropriate person to accept the animals and treat them as companion animals, and I give my animals to such person.
I direct my Executor to give $1000.00 from my estate to the person who accepts my animals, and I request (but do not direct) that these funds be used for the care of my animals...
You will note that the money goes directly to the caregiver and the clause only requests that the funds by used for the care of the animals.
Not very strong.
What happens to my cat Alexandra, if I die without any written provisions for her?
Albert Wolf Point, Montana
Albert, in Montana, as in most states, pets are generally treated the same as other personal property.
If you die without a will (intestate) or an appropriate trust, your property will pass according to the state statutes.
That means that Alexandra will go to your heirs (spouse, children or others) as the law directs.
You will have no decision or control in the matter as to who takes care of your cat.
A will provision or a trust can eliminate these problems, as you can name the individual that you want to take care of your cat, when you are unable to do so.
Contact your attorney and they can assist you with this document preparation.
Jon Stady, North Dakota
Jon, unless you have provided for Caroline in your will or a Pet Trust, statutorily or otherwise, you may have concerns. In most states, generally speaking, companion animals are treated exactly like chattel or personal property when you die. You therefore need to look to the laws of your state to see exactly who would receive your assets if you were to die without a will (intestate).
In North Dakota, the statues are found here;
"CHAPTER 30.1-04 INTESTATE SUCCESSION
30.1-04-01. (2-101) Intestate estate.
1. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in this title, except as modified by the decedent's will.
2. A decedent, by will, may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed the intestate share.
30.1-04-02. (2-102) Share of spouse. The intestate share of a decedent's surviving spouse is:
1. The entire intestate estate if:
a. No descendant or parent of the decedent survives the decedent; or
b. All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
2. The first two hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
3. The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.
4. The first one hundred thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
30.1-04-03. (2-103) Share of heirs other than surviving spouse. Any part of the intestate estate not passing to the decedent's surviving spouse under section 30.1-04-02, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
1. To the decedent's descendants by representation.
2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent.
3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation.
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendant's taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
30.1-04-03.1. Individuals related to decedent through two lines. An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share…
30.1-04-05. (2-105) No taker. If there is no taker under the provisions of this title, the intestate estate passes to the state for the support of the common schools and an action for the recovery of such property and to reduce it into the possession of the state or for its sale and conveyance may be brought by the attorney general or by the state's attorney in the district court of the county in which the property is situated..."
Confused, well many people think that that is exactly what the legislature intended.
In general terms, is means; to your spouse and children then your parents then more distant relatives.
In none of these are around, it goes back to the state of North Dakota.
Don’t leave Caroline to the dictates of the state. Plan for your pet now…
Nobody has a better pet than you.
Nobody has a cuter pet than you, whether it is a big ugly pooch or a small little kitty.
It is your pet, your companion…and your friend.
Unfortunately the law, in most instances, still views this beloved creature as a piece of personal property, not much different than a couch or your car.
Many pet owners are using a Pet Trust to provide for the future plans of their pets. However, some owners are uncomfortable with this document and are looking to protect their pets the old fashioned way- via their wills.
If you are in the process of preparing a will for you or you and your spouse, you can certainly include clauses that reference your pets.
If you already have a will, you can add and a codicil (a change or addition to a will) to that document. Generally, there are a number of different types of clauses that refer to your pet and your estate planning.
One clause simply gives your animal to another individual upon your death and asks that the individual treat your pet as their companion animal. You direct that you executor give a certain amount of money to that individual and request that the funds be used for the care of your pet. You can also set out specific instructions for the care of your pet.
However, the downside of using a will for estate planning for your pets is that because they are still considered an asset or property by the Courts, the clause may not be enforceable.
The Trust and Estate Highlights of the law firm of Williams Mullen suggest that one solution is to leave the money to the individual (caretaker). They point out, however... that the individual has no legal obligation to use the money on behalf of the pet, so the owner must trust this person unequivocally. Moreover, if too much money is left to the caretaker, relatives and other interested parties may challenge the pet care bequest. In addition, pet owners must consider that the caretaker might accept the money but refuse the pet. Using a conditional bequest, this leaves the money contingent on the caretaker taking the pet, guards against this problem. This does not, however, prevent the caretaker from accepting the pet and then disposing of it.
In addition, the individual cannot be held accountable for the use of the funds if they decide to spend the money or other things (like a trip to the Bahamas) and remember, your will only becomes effective upon your death. If there is an emergency situation regarding your pet, the will is of no use.
I have been reading various articles on the subject of pet trusts. I want to fully provide for my Bengal cat, Bangle, and I already have a will. Can I just add some type of addition to this will to take care of Bangle if necessary?
Cyndi, Indianapolis, Indiana
Cyndi...certainly there are some other alternatives to take care of Bangle besides setting up a Pet Trust. You can leave a direct bequest in your will. But remember that the courts, unlike you, still consider your pets to be personal property and like all of your other assets, they can be left upon your death to a friend or family member.
You can provide for a specific amount of money to take care of your pet and provide specific instructions, to a caretaker, for the care of Bangle. If the caretaker does not provide the appropriate care, then they are not entitled to the money. Someone needs to be appointed (personal representative?) to make sure that the money is being used as you intended, That is, for the care of your pet.
An addition to your will or a specific will clause are relatively simple methods to protect Bengal; however, there are some pitfalls to this method of providing for the future of your pet.
First of all, as it is a clause in your will, it will not take effect until your death. Therefore, in an emergency situation, it would not provide for the care of your pet.
Secondly, the courts have held that if you provide…let's say...a clause that gives $5,000.00 to my friend Mary Ann to take care of Bengal upon my death… and Bengal dies before you...if you have not changed your will...Mary Ann is probably still entitled to receive the $5,000.00 upon your death.
Thirdly, the probate process involving your will and the distribution of your assets will normally take a few months to conclude.
Along with the appropriate will clauses, there are other legal methods available to provide for your pets in Indiana. For almost three years, Indiana has had a Statutory Pet Trust, established by the legislature, that allows for the creation of a trust for your pet during your lifetime.
If you have additional questions regarding will clauses or Statutory Pet Trusts in Indiana, we can assist you in those matters.
- There are approximately 74.8 million dogs that are owned in the United States
- Thirty-nine percent (39%) of U.S. homeowners have at least one dog
- Most owners (63 percent) own one dog
- Twenty-five percent (25%) of owners own two dogs
- Twelve percent (12%) of owners own three or more dogs
- On average, owners have almost two dogs (1.7)
- The proportion of male to female dogs is even
- Ten percent of owned dogs were adopted from an animal shelter
- On average, dog owners spent $219 on veterinary visits (vaccine, well visits) annually
- Seventy-five percent (75%) of owned dogs are spayed or neutered
Unfortunately, it is also estimated that less than 2 out or every 10 dog owners have taken the time to provide for the future well being of their favorite pooch.
- Who will take care of your Pet when you are unable to do so?
- Do you have a Pet Trust or does your Will provide for your companion?
- Should the need arise, do you have a Medical Power of Attorney for your Pet in place?
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.