Estate Planning and Companion Animals
You Can't Leave It All to Your Companion Animal
Animals are considered property under the law and the law does not permit someone to leave property to property. Thus, you cannot give any gift outright to your companion animals. Historically, many courts would not even uphold so-called "honorary trusts" for the benefit of companion animals.
Fortunately, this is starting to change. A number of states now have laws permitting the creation of honorary trusts in favor of companion animals. A few states even allow enforceable trusts for companion animals. Unfortunately however, Illinois is not among those states.
What You Can Do
Nonetheless, there are still ways you can provide for your companion after you are gone. The most important step is to find someone you trust completely to take care of your companion and discuss your plans with them. If there is no one, then look for a charity that would be willing to care for your friend in exchange for a donation. Be sure to inquire about specifics, for example: will your animal live there (in cases of a shelter), go home with a volunteer, or be placed for adoption? Will your companion have to stay in a cage? What is the screening process for adoptive homes? The possibilities are as varied as the types of organizations, so be sure to ask questions until you feel comfortable you've found a good match for your companion.
You also need to think about funding your companion's continued care. In addition to food, medications, grooming needs, and regular vet visits, don't forget to include a sum to help cover emergencies. One crucial note though: no matter how much you love your companion, don't leave more than you realistically think your friend will need to maintain, at most, its current lifestyle. If you leave too much, you run a greater risk that the court will invalidate the provision as excessive or irrational.
One way to try to prevent challenges to your Will is to include an "in terrorem" clause. This clause provides that if a person challenges any provision of your Will and loses, then he or she cannot receive anything under any provision of your Will. A word of caution here however, these clauses tend to be disfavored by courts.
A more sound method is to sit down with your beneficiaries and have a frank discussion about your wishes. If you get the sense that anyone is inclined to do away with Fido to get at your money now is the time to deal with this. Also explain your wishes to your attorney. Many types of bequests and trusts exist, and depending upon where you live, even subtle differences in wording may increase the chances that your plan will withstand a challenge. A carefully crafted document based on a well-thought plan offers the best chance that your final wishes will be honored.
Don't Forget About Short-Term Arrangements
This is critical because it may be several weeks or months before your Will is admitted to probate and your Executor receives authority to proceed. Your companion still needs to be fed, walked and generally cared for in the meantime. Short-term arrangements are also critical in the event you are hospitalized. Try to find a friend, neighbor or relative to provide interim care for your companion. Give them written instructions and a key (or instructions on who has a key). Give a copy to your executor. Keep an extra copy, along with the rest of your estate plans, in your home. Make sure your caretaker knows the location of these documents. If you live in an apartment, provide written permission for the caretaker to enter your apartment under these circumstances and give a copy to the building superintendent. You may want to leave an extra key with the superintendent or another neighbor.
Again, if no such person is available, contact a local shelter. Here, it is especially important to provide written instructions, permission to enter your premises if necessary, and directions explaining how to obtain a key. Try to arrange for even a distant friend or relative to make sure shelter personnel are notified if you are hospitalized or die.
You can include a provision in your Will which states that short-term expenses such as food, veterinary care or transportation costs are to be paid as an estate administration expense, regardless of whether the expenses are deductible for estate tax purposes. Finally, prepare an emergency card to carry in your wallet. The card should simply state that in case of emergency, please notify [caretaker] at [phone and address] to arrange for the care of your companion animal[s]. List a contingent caretaker if you have one. You also can state the names and types of animals and who else has a copy of your instructions. Keep the card next to any other emergency information in your wallet.
Conclusion
These suggestions do take some time and planning. However, hopefully they will pay off in peace of mind for you now and a good life for your companion later.
Amy A. Breyer is an attorney in Oak Park, Illinois who concentrates her practice in animal law. She can be reached at (708)358-1400 or breyer@AnimalLawOnline.net. This column is for informational purposes only and does not constitute legal advice.
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