Mahan Law Blog

Wednesday, November 19, 2014

In Pets We Trust?

Do you consider your pet(s) as more than personal property?  I believe most pet owners would agree, but then again most pet owners do not consider his or her pet when making estate plans.  The problem probably stems from attorneys being engrained that pets are merely "personal property" and therefore fail to acknowledge the higher importance they can play in our lives.  Admittedly, if I was not regularly involved in representing animal hospitals, veterinarians, and kennels I too could forget pets when discussing estate planning.  

The U.S. legal system traditionally sees our beloved pets as nothing more than "personal property" that can be replaced at a negligible replacement value.  The pet owners I know would not only find such a stance insulting, but an outright abuse of common sense...but I digress.  In a previous blog entry entitled "Why all veterinarians, rescues, groomers and kennel owners should know about Poco and PJ" I was compelled to make the case that courts in general are beginning to place a higher value on our beloved pets beyond than the traditional "personal property" view.  Courts are slowly treating pets at a standard that exceeds mere "personal property," such as one court's ruling pets are more akin to a family heirloom with value well beyond a fixed dollar amount.  But what happens to a family heirloom if its owner passes away?  Normally, the heirloom property is passed to the intended beneficiaries via an appropriate testamentary document such as a will or trust.  If the property passes through the probate process it can take months, or even years, before the property is given to the beneficiary.  Luckily for heirlooms they do not require much food, water, shelter, love or attention.  But what about pets?

Pets can be bequest in a will to a particular beneficiary or provided to a beneficiary by the executor's administration of the overall estate.  However, as stated above this is often not the best choice due to time limitations of obtaining a decedent's will, probating it, having an executor appointed, and then finding the appropriate person to care for the pet.  If a specific beneficiary is not chosen by the owner, or an owner dies without a will, then the appointed executor will have to make the difficult choice of choosing between beneficiaries or giving the pet over to an adoption agency.  Sometimes the best caretaker for your pet might not have the financial ability to care for the pet...which means a pet trust might be right for you!

Ohio and Kentucky permit owners to establish Pet Trusts.  A trust is a legal entity set up to accomplish a particular purpose--such as caring for a pet.  Unlike a will that is subject to the probate process, a trust becomes effective immediately upon the terms of the trust--usually death or disability of the pet owner.  A pet trust details your pet's care and control and gives specific directions about daily care, medical attention, physical control and even burial.  In addition, the trust makes monetary funds or specific gifts available to care for the pet.  While a pet cannot be a legal "beneficiary" of the trust , a well-drafted pet trust can ensure any assets left for your pet will be utilized for the care and control in the trust directives.  Most clients see this as an opportunity to ensure his or her pet maintains a similar lifestyle and receives appropriate medical care without placing a financial burden on the beneficiary.

As you update or make changes to your estate planning documents consider including pet trusts and other specialized trusts instruments such as gun trusts to your overall estate plan.

 -Anthony A. Mahan, Esq.

Anthony Mahan is the managing attorney at Mahan Law, member of the American Veterinary Medical Law Association, and co-owner of Riverview Animal Hospital.


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