Updated: Sep 3, 2020
So, who does get the dog when I die? We are a few posts into our new blog and we haven’t addressed the question our blog is named after yet!
© 2020 Kirby Myers
When clients ask me this question, I ask them to consider:
1. Who do you want to adopt your pet if you are alive but incapacitated (as well as at your death)? We often worry about the care of our pets in the context of dying, but a significant illness, injury, or hospitalization can also create problems for our pet care.
2. Do you want to provide any funds for travel expenses, veterinary care, food, etc.? If the answer is yes, then consider how much money would be appropriate and whether or not it should be given directly to the person adopting the pet, or if it should be held in a trust or account, with the remainder passing to a charity supporting animal welfare, for example.
Once you have developed answers to the above questions, you can consider the practicalities of providing for the care of your pets through your estate plan:
1. How do I name a person to adopt my pet at my disability? It’s difficult to think of our pets as “possessions” (they are our fur babies after all!), but in the estate planning context, they are treated as property.
If you are alive but become incapacitated, generally the person listed as your agent on your Statutory Power of Attorney or as Trustee of your trust (If you have one) will be authorized to manage your property if you become incapacitated. (Please note, in future blog posts, we plan to review the different types of Powers of Attorneys, the need to update them regularly, and the benefits/disadvantages of a trust and will for an estate plan versus simply using a will. Those questions are beyond the scope of this post, however). For purposes of this post, we will assume that you have a Statutory Power of Attorney naming your friend, Andy, as your Agent.
Andy your Agent will be authorized to protect and manage your assets if you become incapacitated. This does not mean that Andy your Agent must adopt your pets, but it does mean that he will be responsible for following instructions you leave him regarding the care of your pets during your incapacity. For example, many breeders require that pets be returned to them if the owner becomes unable to care for the pet. With a properly drafted Statutory Power of Attorney, Andy your Agent would be able to access an account, withdraw funds, and then arrange for the transportation of your puppy back to the breeder (if that's appropriate). It is critical to provide written instructions for your agent or name an agent who would understand your wishes and make sure that they are honored.
Many clients also leave instructions that pets should not be delivered to an organization that will euthanize animals when not medically required. Some organizations will accept older pets but require a donation to pay for the expenses of the pet. This can often be a sizable donation (for horses, for example). It is important to investigate different options even if you do not have a family member or friend (and a successor or two) willing to adopt your pets because circumstances may change and no individual will be willing to adopt your pet at the time.
2. How do I name a person to adopt my pet at my death? At your death, the process is similar, with two differences.
First, at your death, your Power of Attorney (at least in New Mexico) will no longer be effective. This means that Andy your Agent cannot act under to the authority you granted to him in your Power of Attorney. However, your Personal Representative (named in a properly drafted Will) or your Trustee (named in a properly drafted Trust Agreement) will now have authority to manage your property, including your pets.
The second difference between dealing with pets during incapacity versus at death is that after you die, your pets can pass to an agent named on a Personal Effects List (the list does not become effective if you are disabled, it only becomes effective at your death under New Mexico law). If your Trust or Will reference a written Personal Effects List, you can identify the person to receive specific pieces of property. You cannot leave cash distributions pursuant to the list, however. If you wish to leave cash distributions to provide for the care and welfare of your pets, you would need to do so either in a Trust Agreement or by specific instructions in your Will.
The Personal Effects List does not need to be notarized under New Mexico law, and can generally be easily changed without the assistance of an attorney. As friends move and pets change, the List can be easily updated.
3. What’s the best way to leave money for the care of a pet? The answer to this question depends in large part on the amount of money that you would like to leave for your pet’s care. The amount of money impacts the complexity required to provide for the management of the funds. For example, if you are leaving a small amount, it generally would not warrant the complexity of establishing a trust (with the associated income tax returns, Trustee fees, etc.). The decision of how much money to leave and in what manner to leave it for the use of your pets can be a complex decision. Please meet with a qualified attorney to explore the different options, benefits, risks, and overall costs.
4. Unfortunate Real Life Example (with a Happy Ending): And now for a real life example illustrating the importance of naming a Trustee or agent committed to honoring your wishes: A few years ago, I was notified that a client died in her home unexpectedly. Through Facebook posts, I learned that she had been found in her home by the police after a neighbor called in, concerned about her welfare. When the police knocked down the door to check on her, her pets escaped! Of course, all of this happened on a Saturday. When I found out, I called the CEO of the trust company named as the successor Trustee in her Trust Agreement. The CEO immediately stepped into action, contacted the friends posting on Facebook, called the local animal shelters, and miraculously found all of the missing pets (who were, needless to say, very loved and dear to the client). The Trustee then also found caring homes for each pet. Had the client named a successor Trustee who was far away or less conscientious, the result might have been tragically different.
Even though we might treat pets as “property” for estate planning, they are part of our family and with proper advance planning they can continue to be loved and cared for even when we aren’t available. If you would like to learn more about how to provide for the care of your pets at your death or incapacity, please call our office or speak to another qualified attorney.
Post by: Vickie R. Wilcox, J.D. LL.M. (Taxation)
Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.