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How to Include Pets in your Estate Plan

The continued care of your beloved dog, cat or other companion animal is a concern raised by a many pet owners. These animals bring you comfort, give love and can be as close to you as your family ever was. You don’t want to abandon your animal friends.

Several situations may arise that require immediate care for your pets. Sudden illness may take you away from them. You may gradually lose the ability to care for them due to your own infirmity. Or you may die, leaving them alone.

You can plan to be certain they will not be abandoned. I suggest that any pet owner do the following:

  1. Arrange for a backup caretaker for your pets. You should always have someone who checks on your well-being regularly. If they find that you are ill, they should know whom to contact to care for your pets.

  2. Leave written emergency instructions. Do your pets take any medications? Where is their food, and how much do they get? Who is their veterinarian?

  3. Be certain that you have a Durable Power of Attorney in place. It would allow your agent to access your funds, and provide resources so your pets’ caretaker can buy supplies and pay the vet.

  4. Mention your pet or pets in your Last Will and Testament. Texas law had no formal method to leave funds for your animals’ care until 2006. Then the legislature passed an amendment to the Texas Property Code allowing you to establish a trust for the care of your pets – but only pets that were alive during your own lifetime. You could not, for instance, set up a trust for your dog and “any puppies born after” you die. The law says that the trust must end on the death of the pets you had while you were alive.

A Pet Trust can be established in a Living Trust or in a Will. For instance, if you have a Living Trust you can add a provision for the welfare of your pets during any time that you become disabled. Then the trustee of your Living Trust will have resources available specifically to care for your pets. If the Pet Trust is contained inside your Will (a testamentary Pet Trust) then it won’t take effect until you die, so you would need some other plan to care for your pets if you become disabled.

The law allows you to identify persons to whom the funds will pass after both you and your pets have died. If you do not make the choice for yourself, then the funds will pass to your heirs at law. Clearly it is best to make the choice yourself.

What if you establish a Pet Trust in your Will and an “interested” person thinks that you were overly generous to the dogs, unnecessarily cutting into the money available to the human heirs? Texas law says that the trust funds may be “applied to a use other than the property’s intended use under the trust to the extent the court determines that the value of the trust property exceeds the amount required for the intended use.” In other words, leaving a million dollars for the care of your dog can be challenged, and the excess funds that are not realistically needed for the dog can be distributed to the human heirs named in the trust instrument (or to your heirs at law if the instrument is silent).

If you have not already considered the welfare of your pets, consult with your Elder Law attorney about modifying your existing plan, or creating a new plan to care for your pets upon your disability or demise.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, February 24, 2014


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