APPROXIMATELY 78 million dogs and 85.8 million cats are owned in the United States (ASPCA Pet Statistics). About 52% of California households own a pet (American Veterinary Medical Association 2011 survey) and in San Francisco, “dogs outnumber children” (U.S. census figures from 2000 and 2005).
Pets are a very important part of the American home. They are considered family, loved and cherished by their owners. Thus, it is shocking to learn nearly 500,000 pets are killed annually in shelters and veterinarian offices after their owners pass (Robin Lang, Pet Trusts quoting 2nd Chance 4 Pets, a Los Gatos, CA, based nonprofit organization). To prevent this, California pet owners will want to plan ahead to insure their pets are cared for when they pass. Such planning may appear simple: my children will care for my pet, or my friends will take on the job, or my extended family in another state will care for my pet. It is not always this easy.
In 1968, the court in Estate of Russell found that Roxy Russell, a testatrix’s dog, was not and could not be a beneficiary of a will because dogs are not “persons,” but considered personal property.
In 1991, the California legislature attempted to address this problem with former Probate Code §15212. It allowed trustees of a pet trust to care for a designated domestic animal, even if no actual beneficiary could enforce the trust. However, problems arose from a lack of enforcing this. Basically, with no legal “person” to enforce the pet trust, a trustee could simply decide not to care for the pet and leave it to fend for itself.
Only 8 years ago was this shortcoming addressed with the new version of Probate Code §15212. Now a trust that cares for an animal is a lawful noncharitable purpose. In short, a court will carry out a settlor’s general intent and enforce caring for the animal.
There are advantages to having a pet trust over simply directing cash towards the pet. A pet trust allows you to choose successor caretakers, provide specific instructions on how to care for your pet, and set aside a specific amount of compensation for both the pet and its caretakers. Further, Probate Code §15212 now includes more enforcement mechanisms for trustees. If no trustee is designated or unwilling or unable to serve, the court will name one. Or if the purpose of the pet trust is not being followed, the trustee may go to court to enforce it or if none designated, the court will appoint a person.
Should you have a pet trust or include pet protection in a will? Pet wills may not adequately protect your pets. First, instructions in a will that a person must care for your pet for its lifetime are unenforceable. Second, wills do not avoid probate. Thus, they are not immediately effective. The waiting period between the will being read by the court and the pet being given to the next owner is lengthy. Issues arise like who will care for your pet while the will is being probated and where will your pet stay. Additionally, if any legal issues arise during this process, care for your animal will be further prolonged.
Third, wills do not consider a settlor’s possible incapacity. Who will care for your pet during if you are incapacitated? Lastly, any changes to the will are in the court’s discretion. This means the fate of your pets may be in the hands of a judge who cannot possibly know nor love your animal as you do.
Thus, it is best to plan ahead, while you have capacity, and arrange for the protection of your pets. Setting up a pet trust will allow for these protections. An attorney can help create a trust that is tailored to your pet(s)’ needs and your wishes. Consult with an informed estate planning firm who can put your wishes into legally enforceable documents.
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Grace Gail Cara, Esq. is an Estate Planning attorney at Elder Law Services of California. She can be contacted at (310) 348-2995 or [email protected]. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Asian Journal. The information presented does not constitute legal advice and should not be treated as such.