Although you will probably outlive your pets, there remains the possibility of premature death, disability, or sudden emergencies that prevent you from properly caring for your animals. Moreover, without adequate planning your beloved pets may be treated in an unacceptable or undignified manner, in a manner outside of your wishes, or remain ignored for a long period of time, which might cause them great physical or psychological discomfort or even jeopardize their health. A judicious estate plan considers the aforementioned contingencies and prepares for your pets’ continued comfort and well being should an unfortunate or unexpected circumstance occur.
Estate plans may include directly gifting your pet to a caregiver via your will or gifting your pet along with a sum of money to the caregiver. However, the chosen caregiver is not legally obligated to accept the gift of your pet or to use allotted monies in the manner that you prefer. Consequently, you should carefully select a primary and alternate caregiver and obtain their agreement ahead of time to best ensure that they will assume duties and act responsibly.
More control of your pet’s care is provided via a pet trust. However, a pet trust is not legally valid unless authorized by statute. In July 2010, the Georgia State Legislature passed OCGA 53-12-28, which establishes that “a trust may be created to provide for the care of an animal that is alive during the settlor’s lifetime.” As of July 2012, all states with the exception of Kentucky, Louisiana, Minnesota, and Mississippi have enacted similar laws.
Through the oversight of a trustee and perhaps the probate court, a trust provides greater assurance that the caregiver will act per your wishes, although there is a greater financial cost than when undertaking outright gifting. A living trust is the least expensive, most expeditious, and most flexible of the trust options. However, a testamentary trust provides additional checks and balances via the requirement that the trustee report annually to the probate court. When creating a pet trust, carefully select fiduciaries (caregivers and trustees), author detailed trust terms, and perform accurate actuarial calculations to minimize the likelihood of underfunding or overfunding.
Furthermore, you should have a durable medical power of attorney, a financial power of attorney, and an emergency plan. The powers of attorney allow an agent(s) to commence action to provide for the temporary or long-term care of your pet should you become disabled, incapacitated, or need to travel for an extended period. In addition, you should have an emergency plan, so that a proximal neighbor, friend, or relative can quickly attend to your pets’ needs should any emergency arise.
For those desiring more detailed information about estate planning considerations for pets, including the use of wills, gifting, inter vivos pet trusts, testamentary pet trusts, durable medical powers of attorney, financial powers of attorney, and emergency plans, please read the full-length version of the CPT article “Estate Planning Considerations for Pets.”
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The preceding article is informational only and is not written to provide legal advice. CPT highly recommends that readers consult the services of an estate planning attorney when pondering any estate issue, including considerations regarding the care of one’s pet. CPT has been extremely impressed with the services of estate planning attorneys Jeffrey M. Zitron, J.D (Menden, Freiman & Zitron, Two Ravinia Drive, Suite 1200, Atlanta, GA 30346, 770-379-1450) and Laura K. Schilling, J.D., CPA, CSA, CFP, (Financial Innovations, 5555 Glenridge Connector, Suite 200, Atlanta, GA 30342, 404-459-2828) and highly encourages readers to involve their services when completing any estate planning matter.
© Mark Spivak and Comprehensive Pet Therapy, Inc., August 2008, Revised February 2014. All rights reserved.
