This column first appeared in the San Antonio Express News and other Hearst Newspapers on July 11, 2019.
Dear Mr. Premack: My father in law died in Texas with a will dividing his estate between his children. My brother is Executor. Dad left no provision for his dog Fluffy. My husband and I took the dog when dad died, and it seems we are stuck with the dog. Is there a way to insist that a provision is made for the dog’s expected life before the estate is divided? – SP
Pets are a wonderful addition to many Senior lives, providing companionship and contact that enriches the Seniors’ lives. But a pet is also a large responsibility with daily care, ongoing vet care, and the need to plan for the pet in case of the Senior’s death.
Many families handle pets in an informal manner that is entirely voluntary. “Yes, mom, I’ll take Fluffy if something happens to you” is not an uncommon conversation. But taking Fluffy means paying for Fluffy, and the Senior should be considerate enough to provide funds if possible.
If a Senior pet owner becomes incapacitated, Texas law states that the Agent under the Senior’s Durable Power of Attorney may have authority to spend money for the pet’s care. However, that is only true if 1) a Durable Power of Attorney has been signed by the Senior, 2) that Durable Power of Attorney either expressly provides for the pet’s care, or 3) if the Durable Power of Attorney was signed after the law change in September 2017 and includes the “family maintenance” provision from that law change.
Before a Senior pet owner dies, Texas law gives the Senior options to pre-plan for the formal ongoing care of pets. Pet owners who are reading this: talk to your estate planning attorneys to enact these ideas.
First, the Senior’s Will can include a clause allowing the Executor to expend estate funds for the pet during the probate process. Second, the Will can include both a change of ownership for the pet (“I leave my dog Fluffy to my daughter Susan”) and can provide funds (“…and further, I give Susan five thousand dollars to be used for the ongoing care of my pets, including food and veterinary care”).
Third, the Senior can create a Pet Trust. This can either be in the Senior’s Will or be a stand-along document. I have written about Pet Trusts in my book Thinking Beyond Tomorrow (available on Amazon) to which I refer you for more details.
What about your situation, where it seems that you would rather not have the pet but have, regardless, taken responsibility? If the Will is silent about pet care and support, are you entitled to any set-aside to provide funds during the pet’s life expectancy? Probably not. The Estates Code does not contain any automatic set aside for the care of pets.
While the pet is still in the custody of the Executor, the Executor has the responsibility to see that the estate’s tangible personal property is not wasted and that its value is not diminished during probate. So, estate funds could be expended for its care until it is adopted. But after the pet is adopted, when the Will is silent about giving funds for its care, then Texas law does not automatically provide funds for its care.
You can always have a conversation with the Executor and your siblings. Let them know how you feel about adopting the dog. Ask if anyone else will volunteer to provide a better home. Ask if they will agree that, since this is an ongoing expense for you, they will all allow funds to be set aside from the estate for the dog’s care. If all the heirs and the Executor agree, then an account can be established for those funds to be used during the dog’s lifetime, and to be split back among your siblings when the dog eventually dies.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.