Putting directions for the care of your pet into your Will may have some drawbacks. One risk with this approach is that a court may not enforce specific instructions in the Will. Traditionally, legally speaking, pets were property – although you could give your treasured collection of stamps to your nephew Ferdy in your Will, you couldn’t dictate that Ferdy keep the collection of stamps in good order; Ferdy might not have an interest in stamp-collecting and could sell the collection or even lose it. One practical problem with simply giving pets to someone is that by the time the Will goes into execution, after your death, that person may not be available to care for the pet – perhaps your pet needs an extraordinary amount of care or at unusual cost, or can’t be in the presence of other pets now owned by the person named, or the person you named has moved to a no-pets apartment complex, or has personal medical issues himself or herself that is consuming all of their time and attention.
Hence; the problem with instructions in the provisions of a Will for care of a pet: people may not act as you wish, and your directions are not binding. When the pet and the money become the property of the caretakers named in the Will, they may do with each what they choose. The law will not inquire as to the suitability of the new owner of the pet to carry out the duties you expect, or even prevent the new owner from giving the animal away and going on a spending spree with the money. Wills are not effective until they are probated, which may not happen until months after the pet owner passes away. This is not practical when pets need care immediately after their owner is gone. The new caretaker needs to begin caring for the pet right away, and if there is money available for expenses, that should be available as soon as possible.
But if you are relatively confident that the person you are selecting to care for your pet is going to be ready, willing and able to care for the pet at the time of your decease, one approach we have used is to create a Memorandum attached to the Will, commonly used to dispose of personal property like jewelry, heirlooms, collections such as stamps, coins, baseball cards, and memorabilia with little economic value but much emotional importance. The Memorandum can direct that the pet go to the person named and can identify some sum of money to assist with the care of the pet. The executor can act on the Memorandum immediately, even before presenting the Will to the Register of Wills for Probate. Moreover, one of the advantages of this type of attached Memorandum is that it can be changed simply by means of an amendment to the Memorandum signed and dated by you in your home; the entire Will doesn’t have to go through the complete execution process before a notary and two witnesses, which is cumbersome if you need or want to make a change. So if you get information years after you made your Will that the person you expect to care for your pet no longer is in a position to do so, you can make the necessary changes to the Memorandum without seeing a lawyer for a new Will. Remember though, as you grow older, so does your pet, with the possibility of increasing cost for your pet’s care.
Fortunately, as noted above, Pennsylvania now recognizes trusts for care of animals. A pet owner can draft a trust during his or her lifetime which appoints a trustee to provide for the care of pets. The trust can be funded before death or by the estate, and should have backup beneficiaries if it still holds money after the pet passes away. The trust can provide instruction and directions for the care of the pet, and can be enforced by the courts if need be. Pennsylvania’s pet trust law provides that a person having an interest in the welfare of the pet may request the court to appoint a person to enforce the trust or remove the person appointed.
Another option is a pet protection agreement, which are simple contracts entered into by the owner and the future caretaker. This could be entered with a friend, family member, or adoption agency who will attempt to find a new home for the pet. These do not require the legal fees and attorney involvement that Wills and trusts demand, but may not provide as much flexibility either. Does the contract include a backup caretaker who also executes the agreement? Can the contract be cancelled by either party without penalty or inconvenience? Who would be able to enforce the contract after you pass away?
Agencies and non-profit organizations that are devoted to the care of animals may act to provide care for a pet under something like a pet surrender agreement. The immediate advantage of such an agreement is that the organization is not an individual who may decline or be unable to act; the organization can generally be trusted to continue in existence (even if merged into another similar organization) and still be interested in carrying out its mission for years to come. In a typical surrender agreement, you acknowledge your desire to surrender the pet upon your death, through your estate representative. You describe the pet (remember, if you have multiple pets, you need to be sure strangers can distinguish which pet is which). You agree that your estate representative will irrevocably transfer the pet. You agree that your estate will pay a non-refundable surrender fee when the pet is surrendered, the amount of which depends on the age and health of the pet. You will give health and behavior information about your pet to the organization. The organization will do an evaluation of the pet’s health at the time of the surrender, which may involve a veterinarian performing a thorough examination. The fee schedule should be made part of the surrender agreement. The organization agrees to make best efforts to find a home for your pet, but cannot make guarantees. This approach works well if there is no one individual you feel is in a position to make a commitment to care for your pet.
Pets who are treated like members of the family should be given careful consideration in the estate planning process. Wolpert Schreiber has experienced estate planning attorneys would be glad to assist you in this area.
