I am not married and do not have any children. I do have three cats and two dogs, and I want to ensure that they will be cared for, if I am incapacitated or when I pass away. What steps can I do to protect them?
Pets are tangible personal property under the law. It is critical to make sure that pets are properly cared for if we are unable to do so ourselves. The care and well-being of the pet is a very important consideration when taking care of estate planning. It’s important to know some laws pertaining to pets to ensure yours will be in the proper hands.
There are a variety of situations where pet-related issues arise. There are anti-cruelty laws to protect pets from extreme abuse and neglect, and many animal-rights organizations are vigilant of detecting abuses. In some jurisdictions, courts have started enforcing visitation agreements in divorce cases. Some unmarried couples have sued one another for custody of a pet. From this perspective, a written agreement between two parties dictating which person will take primary custody of the pet, visitation rights, and monetary support, can be helpful in avoiding unnecessary disputes.
Many are unaware that New York City has a pet law that applies to renters living in buildings with three or more apartments, and to the owners of co-operative apartments, and to condo owners in Brooklyn, Queens, and Staten Island. Under the law, a landlord cannot evict someone for having a pet, if the pet was kept openly and the landlord knew about it for at least three months. The pet law may override a no-pet clause in a lease, if a tenant has kept the pet “openly” and “notoriously,” meaning that you make no effort to hide the pet and others see it regularly. The landlord must have known or should have known about the pet for three months or more, and the landlord does not enforce the no-pet clause.
An owner should not only consider what should occur in the event of death, but also what arrangement should be made during the interim period between death and the admission of the will to probate. And what arrangements should be made in the event of hospitalization or incapacitation. In other words, a pet owner should arrange for access to her home to permit the care and feeding of the pet during such periods.
A will can make provisions for the care of the pet, but the executor cannot officially take action to carry out these provisions until the will has been admitted to probate and the executor has received the authority to proceed by the issuance of letters testamentary. Since there can be a period of months between death and the issuance of letters testamentary, plans should be made to ensure care for the pet during the interim. This can be accomplished by a letter authorizing someone to take custody of a pet in certain circumstances.
An owner can designate a suitable caretaker for her pet in her will. This matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. It should be noted that the person who receives an animal as the result of a bequest in a will becomes the owner and, as such, has all the rights and responsibilities of ownership (including the right to euthanize the animal). It is prudent to name alternate caretakers in the will in case the first-named person is unable to take the animal.
Since a pet owner cannot leave any part of the estate outright to an animal, the owner may leave a sum of money to the person designated to care for the pet. The owner should leave a reasonable amount of money for the care of any pet, since a large sum of money could prompt relatives to challenge the will. If the bequest is conditioned upon the beneficiary’s proper care for the pet, the executor will be obligated to ensure that the person receiving the bequest fulfills his or her commitment. The bequest can also be left to a pet trust. The pet trust cannot exceed 21 years, even if the life span of a particular animal is longer. The trustee appointed will be directed to the trust instrument to use the funds to care for the animals.
If there is no appropriate individual to take the pet, the owner should consider naming a charitable organization to care for or place the pet. It is advisable to specify that the pet should not be sent to any institution that euthanizes animals, or to any organization that supports such shelters.
A concerned owner might consider keeping a short written note in her wallet or purse containing emergency instructions in the event of injured or hospitalized.
In short, the best way to assure proper care for a pet is to make both short-term and long-term testamentary arrangements for your animals as part of your estate and crisis-planning process.
Alison Arden Besunder is the founding attorney of the Law Offices of Alison Arden Besunder P.C., where she assists parents with estate planning needs. Her firm has clients in New York City, Nassau, and Suffolk Counties. You can find Besunder on Twitter @estatetrustplan and on her website at www.besunderlaw.com.
