Providing For Your Companion Animals In The Event of Your Death or Hospitalization
Introduction
For many people, particularly the elderly, a companion animal is an important and comforting part of life, and the care and well-being of the companion animal is a primary concern.
With this in mind, there are three situations in which a caretaker should plan for the care of the companion animal.
1
. On the death of the caretaker, provisions are necessary in the caretakers Will, to provide effectively for comfort and care of the companion animal.2. On the death of the caretaker, advance arrangements should be made to protect the companion animal, during the period between the caretakers death and the admission of the Will to probate. Too often this period is not considered. Although a Will can make provisions for the care of the companion animal, no action can be taken by the Executor to carry out these provisions until the will has been admitted to probate and the Executor has received the authority to proceed by the issuance of letters testamentary. The time between death and the authority of the Executor to act can vary between several weeks and several months. Plans must be made to ensure care for the companion animal during this interim period.
3. Upon the incapacity or hospitalization of the caretaker, advance arrangements should be made to ensure care of the companion animal while the caretaker is hospitalized or incapacitated. The purpose of this information is to suggest various programs a caretaker can consider in order to provide for the comfort and care of his/her companion animal under any of these circumstances. In addition, included here is information and sample Will provisions which may be useful to attorneys who prepare Wills for clients with companion animals. (Note the accompanying sample Will provisions are not offered as legal advice and should not be relied upon without the independent advice of a qualified attorney concentrating in trust and estate matters).
Planning for Your Companion Animals In Your Will
* Designating Caretakers
A caretaker should find a friend or relative willing to take his/her animal and give it a good home on the death of the caretaker. The matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. The person who will receive an animal as the result of a bequest in a Will should understand that he or she becomes the animal's caretaker and, as such, has all the rights and responsibilities to care for it.
The caretaker should then ask a qualified attorney to draft his/her Will, leaving the animal to the caretaker the current caretaker has selected. It is best to name alternate caretakers in the Will in case the first-named person is unable or unwilling to take the animal when the time comes. An example of such a Will provision appears later (Sample Will Provision I)
Another alternative is to give the Executor the discretion to select from among several caretakers prearranged and named by the caretaker in his/her Will. An example of this type of Will provision appears later (Sample Will Provision II).
Providing Funds for Pet Care
New York State law at this time does not allow a caretaker to leave any part of his or her estate directly to an animal, but the caretaker may leave a sum of money to the person designated to care for the companion animal, along with a request (not a direction) that the money be used for the companion animal's care. It is important for the caretaker to select a caretaker he/she trusts and who will be devoted to the companion animal, because the caretaker has no legal obligation under the above provision to use the money for the purpose specified.
The caretaker should leave only a reasonable amount of money for the care of any companion animal. A large sum of money may prompt relatives to challenge the Will and the court may invalidate the bequest for the companion animal care. The attorney may want to include an "in terrorem" clause in the caretaker's Will to reduce the chance of a challenge to the Will. This clause provides that if a person unsuccessfully challenges a provision in the Will, he or she cannot then receive property under any provision of the Will.
Designating a Shelter or Charitable Organization to Care for Companion Animals
If no friend or relative can be found to take the companion animal, the caretaker should look for a charitable organization whose function is to care for or place companion animals. A humane society or shelter might agree to accept the animal along with a cash bequest to cover expenses. An example of this type of Will provision appears later (Sample Will Provision III)
The charity should agree to take care of the animal for its life or find an adoptive home for the animal. Before selecting a shelter, find out what kind of care animals receive at this shelter (for example, an animal should not have to stay for more than a short period in a cage). If the organization is directed to find an adoptive home for the companion animal in its care, the caretaker should obtain detailed information about the adoption procedure.
Make a Conditional Bequest
New York and some other states allow the caretaker to make a "conditional bequest" in which both the animal and a sum of money are left to a beneficiary who must use the money for the care of the animal. A conditional bequest has the advantage of requiring the recipient to care for the companion animal but adds to the Executor's responsibility the task of ensuring that the person receiving the money fulfills his or commitment.
The caretaker, therefore, has to select an Executor willing to undertake this added responsibility. If a caretaker wants a conditional bequest, the attorney drafting the will must consider the relevant law concerning such provisions, since they can be invalidated by the courts and are therefore not recommended.
Establishing an Honorary Trust
Under current New York law, an animal cannot be made the beneficiary of a trust. But in some states, such as California, a trust for animals -- called an "honorary trust" -- is legal as long as the term of the trust does not exceed 21 years. In states which permit an honorary trust, the trustee named by the caretaker can use the funds in the trust to care for the animal. If the trustee cannot take physical possession of the animal, a separate person should be named as the caretaker. The caretaker should select the trustee carefully, because the trust is only effective as long as the trustee chooses to follow its terms, and there is no practical means to enforce compliance.
In New York and most states where honorary trusts are not permitted, a trust for human beneficiaries can include a provision that the trustees may use trust property to pay for the care of a specific animal, even if such payments are not a deductible administration expense of the trust.
Providing for Euthanasia If Caretakers Cannot Be Found
Provisions in a Will directing that an animal be euthanized upon the death of its caretaker have been invalidated by the courts. While a caretaker may feel it is important to protect a companion from subsequent mistreatment or a "bad home," it is questionable whether a healthy companion animal's life must end by euthanasia when its caretaker dies. Nevertheless, if a caretaker wishes to provide for euthanasia, it is preferable to specify in a Will that the companion animal be cared for by the Executor or a friend for a period of time and ask that this person attempt to find a good home for the companion animal, and if no home is found after a specified reasonable period of time, that the animal may be taken for euthanasia. A court may be less likely to overturn such a provision. An example of this type of Will provision appears later (Sample Will Provision IV)
An alternative is to write a letter to a friend or relative stating that upon the death of the caretaker, the animal should be euthanized. (A signed copy should be given in advance to the friend or relative and another signed copy should be held with the Will but not made part of the Will). The letter is not legally binding and the friend or relative is not obligated to carry out the instructions of the caretaker. Euthanasia performed pursuant to a letter from the caretaker is also subject to court challenge.
It is preferable that permission of those relatives or other persons or charities who take the balance of the estate -- the residuary beneficiaries -- be obtained before any animals are euthanized, as the residuary beneficiaries could complain that the animal is part of the estate property and should pass to them. This is unlikely, but it has happened.
It should be noted that if you bequeath your animal to a friend or relative, that person becomes the caretaker and has all rights and obligations of the companion animal's care, including the right to euthanize the animal.
Providing Funds for Pet Care During Transitional Period
Finally, a provision which should be included in all Wills where an animal is involved, is only allowing the Executor to use estate funds to care for the animal for the period before the animal goes to the new home designated by the caretaker. The Will should state that the costs of food, veterinary care, transportation and other expenses incurred by the Executor in caring for the decedent's companion animal is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes. An example of this type of Will provision appears later (Sample Will Provision V).
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