We love our pets! But, even though you think of Fido as a member of the family, an animal may not hold legal title to property. Therefore, there are generally only two ways in which you can provide for your pets after your death.
- Gift To Human Caretaker
You may simply make an outright gift of your property to a human being and request that this person (the “caretaker”) use your money and assets to feed and care for your animals. Your Will may set forth the uses for which the money should be expended – food, veterinarian bills, cat litter, toys, and perhaps a “stipend” to the caretaker for his/her time and effort in caring for your animals. This is the simplest and least expensive way to leave assets for the benefit of your pets.
However, note that under the California and tax laws you are really making a gift to the human “caretaker” and not the animal. The human caretaker is the legal owner of the assets. The language requiring the caretaker to use the assets for the animals’ benefit is only “precatory”, meaning that it indicates your desires for the use of your estate but is not legally binding. So, it is obviously critical to choose someone whom you trust implicitly to use the assets for the animals benefit, and not his or her own.
- Establish Trust for Your Pets
The only way to assure that your estate will be used for your pets is to establish a trust pursuant to California Probate Code §15212. While there was a question under former law as to whether a valid trust could be set up for pets, §15212 specifically authorizes establishing a trust for a pet. In order to set up such a trust, a trust document would need to be drafted. The trust would, again, spell out your instructions for trustee in the care of your pets (i.e., food, health needs, etc.), but unlike the gift to a human caretaker, the trust is legally binding. The trustee must use the assets for your pets’ benefit, or he/she will be subject to a court action for removal, damages, or other adverse legal consequences.
You should still name a trustee who you know loves animals, and will care for your animals in the manner in which you instruct. The trust lasts for the life of your animal(s). The trust document should state who will receive any remaining assets at the death of your last pet.
While a trust gives your comfort and certainty, it is more costly and complicated to establish and maintain. A trust document with detailed instructions must be drafted. This is more costly than a simple gift in your Will to the caretaker. Also, after your death, the trust must file an annual tax return and make certain inventories and accountings. Therefore, there will be additional legal and accounting fees.
Disclaimer: Blog posts are for general information only and may not be applicable to your individual circumstances. This blog post is not intended nor shall it be deemed to provide legal advice to its reader. If you would like further information on the subject of this blog post, please feel free to contact me.
Copyright © Bill Van Dusen 02/10/2017