From the Estate Planning, Probate & Trusts Practice.
Anyone who has lost a pet knows a special sorrow. What happens, however, when it is the pet that loses its owner? That lingering question, and its potentially tragic ramifications, are leading more and more pet owners to plan for the care of their pets after their own death.
A good first step is to decide who should care for a pet in the owner’s absence and see if that person is willing to take on such a responsibility. If so, a good next step is to provide that person a key to the owner’s house. After all, by the time anyone realizes that a pet needs attention, the pet is likely to need that attention immediately.
Next, a pet owner should consider executing the proper documents to provide for the pet’s care in case the owner becomes incapacitated. In most cases, it will suffice to include a simple “pet clause” in a general power of attorney, giving an attorney-in-fact access to the owner’s funds for the purposes of pet care. Sometimes, however, the owner may need a separate power of attorney limited to just pet care matters, perhaps involving advance co-ordination with the pet’s regular veterinarian.
Lastly, a pet owner should consider placing specific language in his or her Last Will and Testament addressing the pet’s needs. Since animals are generally considered property under the law, a properly executed Will can conclusively designate the pet’s new owner. It is also a good idea to authorize spending estate assets on pet care, and also to allow the Personal Representative to pick an alternate owner for the pet, just in case the first choice for some reason declines to accept ownership.
Since the costs associated with taking on a new pet can deter someone from agreeing to care for that pet, it may be wise in some situations to provide funds for the pet’s care in the owner’s Will. A simple cash bequest to the new owner may be sufficient, so long as the gift is made contingent upon that person actually taking the pet.
In more complex cases, it may be desirable to set up a small trust fund for the care of the orphaned pet or pets. Unfortunately, this is difficult to accomplish, because Maryland law currently does not allow an animal to be a beneficiary of a trust. (Legislation authorizing “pet trusts” passed the Maryland Senate overwhelmingly in the 2006 Session of the General Assembly but died in committee in the House of Delegates.) Instead, the new owner could be the trust’s actual beneficiary, with the trust funds available for pet-related purposes.
Pet trusts are certainly not for everyone, but good planning for pets certainly is. In the words of Antoine de Saint-Exupery, “You become responsible forever for what you have tamed.”