Honorary Pet Trusts

Animals have these advantages over man: they have no theologians to instruct them, their funerals cost them nothing, and no one starts lawsuits over their wills. - VOLTAIRE

Although you can't leave money directly to your animal, there are many things you can do to make sure it is well provided for when you can no longer take care of him or her.

Legally Speaking

Make your decision legally binding by including it in your will. Simply include a provision like this one: "I leave my dog Taffy to my friend Lola Marquez." If you decide to use a revocable living trust (a document that serves the same purpose as a will, but avoids probate after your death) to transfer ownership of your property at your death, you can include a similar clause in the document that creates the trust. Whatever method you use, don't make the gift of your animal a surprise. Talk to the people you want to take the animal, and make sure they are really willing and able to do it. They may adore your animal, but if their children are allergic to it or they live in a high-rise building, they simply may not be in a position to take it. Because circumstances change - your first choice for someone to take your animal could take a job that requires lots of travel or move into a small apartment - it's always a good idea to line up a second choice. You should name this person as an alternate beneficiary in your will or trust, too. If you don't name a new owner in your will or trust, one of two generally undesirable consequences will result:

Your animal will go to the residuary beneficiary of your will (the beneficiary who inherits everything that's not taken care of by the rest of the will); or
If you don't have a will, the animal will go to your next of kin, as determined by state law.

This means that, absent a lucky coincidence, the person who will legally inherit your animal probably won't be the person you would choose.

Leave Money to the New Owner

It's a big responsibility to take care of an animal. So when you name a new owner for your animal in your will, consider also leaving that person some money, to go toward the costs of caring for the animal. It's usually a good idea, even if you think the new owner can easily afford to pay for the animal's upkeep. An animal who arrives with a full dinner dish is likely to be more welcome than one who is on the dole. Here's a sample will clause that leaves both animal and money: "If my dog, Taffy, is alive at my death, I leave her and $3,000 to be used for her care to Brian Smith. If Brian is unable to care for Taffy, I leave her and the $3,000 to be used for her care to Susan McDermott." Although the provision leaving the $3,000 to Brian is legal and enforceable, the part about using the money to take care of Taffy probably isn't. Your friend Brian could lose the whole stash in junk bond investments, and there wouldn't be a thing anybody could do about it. But this shouldn't be a big worry. You should leave your animal, and money to care for it, to someone you trust. If Taffy isn't alive when you die, Brian won't get the $3,000. That money, along with any other property that the will doesn't specifically give away, will go to the person named in the will to receive the "residuary" of your estate.

Leave the Animal to One Person, Money to Another

In unusual circumstances, you may want to consider leaving an animal to one person, and money for the animal's care to someone else. It may be important to consider a plan like this if the person who will care for your animal receives some kind of public assistance - Social Security disability (SSI), for example. If that person receives several thousand dollars from you in a lump sum, it might mean the grant would be cut off until the money is spent - a situation that, obviously, benefits neither your friend nor your animal. Or perhaps you don't quite trust the animal's new owner to use the money in the way you have in mind. Let's say, for example, that your friend Brian is great with dogs and has a place in the country, but his love of animals extends to the ponies - that is, he can't stay away from the track when he's got some extra cash in his pocket. You could leave your dog to Brian and $3,000 to Brian's sister Karen, with instructions to give it to Brian in chunks that he won't find quite so tempting.

Create a Pet Trust

With a pet trust, you can leave property for the benefit of your animal. You put someone else, called a trustee, in charge of managing and spending it. The trustee follows a written set of instructions that you provide. One advantage of a trust is that it can take effect before your death, if you were to become incapacitated and unable to care for your animal. The provisions in a will, of course, don't have any legal effect until your death.

Keep Your Will or Trust Up to Date

What if your animal dies before you do, but your will still leaves someone money for the animal's care? If the beneficiaries fight about it in court, the money you intended to be used for the animal's care will probably still go to the person you named. For example, look at the following will clause, which was the subject of a lawsuit: "FOURTH: Should my husband predecease me, or should we die as the result of a common disaster, I hereby give $5,000.00 to IRENE MORRISON, should she survive me, for the proper care of my dog Duchess." Duchess died before her owner did, but a Colorado court ruled that Morrison should get the $5,000 anyway. Other courts faced with similar situations have ruled the same way. The theory is that the obligation to care for the dog doesn't arise until after the gift of the money is made. And because it's not the beneficiary's fault that she can't carry out the condition, she's entitled to keep the gift. If you want to prevent a similar result, it's quite easy. When you write your will, all you need to do is word the clause so that the money is given only if your dog is still alive. Here's a clause written so that the beneficiary gets the money only if the dog is still living at the time of your death: "If my dog Taffy is living at my death, I leave her and $3,000 to be used for her care to Brian Smith. If Brian is unable to care for Taffy, I leave her and the $3,000 to be used for her care to Susan McDermott."

Heaven goes by favor. If it went by merit, you would stay out and your dog would go in. -MARK TWAIN

There are many creative ways to care for your animal after you are gone. Colorado has complex and particular laws that address this issue. Please contact The Ossmann Law Office for more information.