This is a confidential memo to you as an animal lover and pet owner: we know that you love your pet more than anything and would do anything to keep them happy, comfortable and part of your family forever. But what happens when something happens to you?
Please consider addressing your pet in your will or trust and be sure that those documents are in conformance with the appropriate state laws. Generally you should plan to have your estate plan prepared for and according to the laws of the state in which you plan to die.
There are multiple ways to ensure your pet will be cared for if something happens to you. For example, you can make an informal promise with a family member, friend or neighbor to take in your pet and hope that he or she will follow through. This method is not binding and may leave you with a false sense of security in the event something happens to you.
A Will Can Work
If you are not going to set up a revocable trust, you can provide for your pet in your will with brief instructions and a monetary gift. But realize that in general, under California law, you cannot give a straight devise (a gift) in your will to an animal. See In re Estate of Russell (1968) 69 Cal.2d 200, 70 Cal.Rptr. 561, 444 P.2d 353. See also California Probate Code section 6102 where permitted devisees (gift recipients) include individuals, corporations, governments and organizations, but do not include animals.
A sample devise could be done as follows:
"I give to my friend, Jennifer Sawday, my beloved German Shepherd named Butch or any other pet I may have at the time of my passing. I also give to Jennifer Sawday the sum of $1,000 dollars. I request that Jennifer Sawday use these funds for the care of my pet, but I do not require that the funds be so used."
This devise gives instructions as to whom should receive your pet and provides a sum of money to that person. You cannot require that the person use the money for the care of the pet nor can you give your pet money directly.
A Trust Is Recommended
If you desire to give your pet money ostensibly to be used for his or her care, a trust is recommended.
Since 2008, the California Probate Code allows a trust to be set up for the care of an animal.
California Probate Code section 15212 states, in summary, a trust may be created for the care of an animal or animals that are living at the lifetime of the person who created the trust. In general, such a trust would terminate upon the death of the animal, if only one animal is being provided for, or upon the death of the last surviving animal being provided for in the trust.
For those of you familiar with the rule against perpetuities, such a trust for the term of the life of an animal is not voidable under the rule against perpetuities. The rule against perpetuities states that a trust cannot last longer than 90 years under California law (think of a young tortoise or parrot who may live longer than 90 years after your passing). California has enacted the Uniform Statutory Rule Against Perpetuities (USRAP) (see California Probate Code sections 21200-21231), which provides that a trust may last at least 90 years before the common law rule is applied. See California Probate Code section 21205.
Thus, under California Probate Code section 15212, you can set up or include in an existing revocable trust, a provision for your pet. You can provide who shall receive custody of the pet and designate funds for the care of your pet. You can provide as much detail as you desire regarding the use of those funds. You can segregate a dollar amount, or a percentage of your estate for the care of your pet. You could also state that the entirety of your estate is to be used for the care of your pet and then when your pet dies, the remaining funds will be distributed to your family, friends or organizations as you desire. In your trust, you can also specify who would be the trustee to oversee the care and the funds for your pet. The trustee does not need to be the same person who would receive custody of the animal.
You can also include specific information concerning your pet such as your pet's habits, personality, veterinarian and medical history.
Consider Animal Care Organizations
As you consider drafting provisions in your will or trust for your pet, you may find yourself challenged as to finding the appropriate person to care for your pet. In such circumstances, you may wish to designate a local animal care organization to shelter and rehome your pet along with a specific devise for doing so. For example, I have a German Shepherd so in my trust I provide a gift to the local German Shepherd rescue organization to take in my dog, along with a sum of money.If you decide to provide for your pet in your will or trust, be sure to consult with a qualified estate planning attorney in your area for specific legal advice.