Estate planning for pets - caring for the furry, feathered and other nonhuman family members

The majority of households include a domestic companion animal or other pets ("pets" will be used for this article), yet most estate planning documents ignore this reality. While the law generally views animals as tangible personal property, they are living beings that are quite dependent and perishable - with the capacity to suffer in a variety of ways, feel, think and make choices (attributes of sentience, cognition and agency). Time is of the essence in caring for them and caring for them effectively.


It's a win-win-win for an estate plan to effectively address pets' interests: 1) Meeting a client's intentions and adding value to the plan; 2) ensuring the pet's well-being; and 3) elevating the lawyer's practice and potential service fees.


So, why is there not more pet-specific estate planning? 1) Clients often don't think about it; 2) lawyers are not asking about it; and 3) most lawyers do not know how to do it. Beginning to address pet interests is as simple as adding a question to the data collection questionnaire, such as, "Do you have any household animals that you consider family members or otherwise for which you want to expressly provide in your estate planning?"


There are two approaches to expressly include pet interests into estate planning: 1) pet-specific boilerplate provisions; and 2) special planning, which most often is the creation of a pet trust.


Suitable pet interest boilerplate can be included in the financial power of attorney, the will and the revocable living trust. The kinds of boilerplate coverage might include: articulations for pet care, maintenance, support, health (including spaying/neutering) and general well-being; hiring a caretaker; authorization to board; acquisition of insurances; adoption out or placement to a quality shelter; euthanasia of the pet in appropriate circumstances; and authorizing the establishment and funding of a pet trust.


A pet trust is a unique type of trust. The easiest way to conceptualize a pet trust is to think of it as a form of special needs trust for a person who has limited capacity or unique requirements. California authorizes trusts for the benefit of intended domestic or pet animals - "a trust for the care of an animal is a trust for a lawful noncharitable purpose." CA Probate Code § 15212. California limits the coverage subject animals of trusts to domestic-pet animals. CA Probate Code § 15212(i). Various California codes generally define pets as "household" animals. CA Health & Safety § 113030; CA Pen, Part 1, Title 13, CH 5 § 487f(b)(1) and § 491(a) and (b); CA Pen, Part 1, Title 14, § 5971(c)(1).


Better design and drafting for animal interests include: Who is the subject matter pet and are there any special considerations for the breed or specific animal? If the pet is pregnant, should the offspring be a subject of the trust? What are the standards of proper care? Who should be the named (and suitable) fiduciaries? What dollar amount should fund care for, or any trust for the benefit of the pet(s)?


The roles in the typical pet trust include: trustee, enforcer (a named person to enforce the trust purpose - benefiting the pet) and caretaker. Naming the best person for these pet trust roles is important, and the generally named estate planning fiduciaries may not be better picks. For example, an adult child who is named as fiduciary and is also a remainder beneficiary may not be the right "animal person" and also may have a personal or inherent conflict with the amount funding the pet's interests.


Standards of proper care are important to carefully articulate for the well-being of the pet, as well as justifying the funding amount. Standards for proper care include physical (quality food and clean water, exercise, grooming, regular veterinarian, dental, health insurance, etc.), mental, emotional and behavioral (play and socialization enrichment) and the human support needed to facilitate these elements. Further considerations may include: species, breed, age, health conditions, intentions, affection, enablement of named fiduciaries, overall financial resources of the client and other competing intended beneficiary interests.


It is important to have a rational approach to funding the pet's interests. Courts are authorized to reduce funding if deemed excessive, and remainder beneficiaries inherently have an incentive to question the pet funding. Proactive failsafe drafting for excessive funding may include: (1) have any excess amount being a contingent gift-over to the named caretaker; (2) have any excess amount being a contingent gift or remainder gift to an animal shelter or animal protection organization; or (3) grant a non-general power of appointment to a caretaker, enforcer, or some other pet-friendly person.


Sometimes, creating a pet trust is too complex for the situation, or the cost of creation is not feasible. A simple option is to leave by one's will an outright gift of the pet and an accompanying financial amount to a designated successor owner-guardian of the pet (or adopter). This is the person who might have otherwise been designated as a caregiver if a pet trust could have been an option.


If a lawyer needs a starter kit for estate planning for animals, the Brooks Institute has lawyer-created free resources, including drafting samples, available on its website: https://thebrooksinstitute.org/resources/reports-papers/estate-planning-non-human-animals


Timothy S. Midura is president, executive director and general counsel at The Brooks Institute for Animal Rights Law & Policy, Inc.