Dear Pets Attorney:  I have an 8-year old Alaskan Malamute, Rosie, who means the world to me.  I am getting on in years, and I am worried about what would happen to Rosie if I should pass on before her.  I would like to make a provision in my will for her, but I have heard that this can be a problem.  What options might I have to take care of Rosie after I am gone?
---Committed to Rosie

Dear Committed:  Your concern is one that is shared by many pet owners.  This is often a difficult question to answer, from both a legal and a practical standpoint.

Ultimately, the answer depends on a number of things, including the particular facts and circumstances of a given case and the laws of the state or states that apply in the case.  If you wish to properly plan for the care of your pet, you should consult a local lawyer or other local qualified professional to obtain advise that is specifically tailored to your situation.  But it may be helpful to discuss a few of the issues that can arise and some of the options that might be available.

First of all, the general rule is that courts will not uphold a provision in a will that calls for an outright bequest of money or property to an animal.  The basic reason for this is simple:  The law says that only human beings (or organizations controlled by human beings, such as corporations) are deemed to have the legal right to own and dispose of property.  Animals are generally considered to be items of property that do not have any such right.  For this reason, pet owners who wish to provide for their animals must in most cases consider other alternatives than bequesting money or property.

One relatively simple possibility is for the pet owner to leave her pet to a friend or relative who would take care of the animal and give it a good home.  Obviously, the pet owner would need to discuss such a bequest with this person in advance.

Another alternative might be for the pet owner to include a provision in her will that leaves a specific amount of money to a designated person, along with a request that the person act as caretaker for the pet and use the money for the animal's care.  Because this would effectively leave the use of the money to the discretion of the caretaker, the pet owner would need to select someone trustworthy and discuss the matter with the caretaker in advance.  Be aware, too, that such a request might well be deemed to be a "precatory request" -that is, one that merely expresses a wish - which would not be enforceable in court.

In many states, it is possible for the pet owner to arrange for his pet to be taken care of (or offered up for adoption by) a humane society, animal shelter, or other charitable organization.  This type of arrangement, which frequently involves a bequest of money to the charity to cover expenses, obviously requires extensive investigation by the pet owner to ensure that an appropriate organization is chosen and that things will be handled in a manner satisfactory to the pet owner.

Yet another alternative would be to create a trust specifically designed to provide for the animal's care.  Under such a trust, the pet owner designates a certain amount of money (or other assets) to be property of the trust, and names another person (a "trustee") to administer the money (or assets) for the benefit of the animal.  The animal would effectively be the "beneficiary" of the trust.  However, in many states, an animal is not permitted to be the beneficiary of a trust, and so such a pet trust might be ruled invalid.  In other states, although a pet trust might not be held invalid, it could be deemed an "honorary" trust - one that is not enforceable in court and that is effective only if the trustee chooses to comply with its terms.

In a few states, pet trusts are actually provided for and deemed valid by written statues.  However, even in these states, there is often a 21-year time limit to the trust., which could be less than the life span of some long-lived animals, such as tortoises and certain birds.  Also, because a trust is typically enforceable only by its beneficiary, and because traditionally an animal doesn't have the right to enforce anything, enforcement of a pet trust cold be a problem.  In other words, if the trustee under the pet trust refuses to abide by the trust requirements, there might not be anyone with the right to go to court to force compliance.  Some states have addressed this issue by providing that the court will appoint someone to enforce the pet trust, if necessary.

Apart form the legal complexities, numerous practical issues need to be considered.  For example, how much money should be designated for the care of a pet over its lifetime?  Normally, such expenses would be relatively small.  Setting aside an amount of money that is clearly excessive could not only prove wasteful, it might also result in the will provision being challenged by irate relatives and set aside by a court.

As you can see, this a complex area of the law.  As I have said, pet owners seeking specific solutions for their situation need to consult with a local attorney or other local qualified professional.

About Pets Attorney:  Steve Skacevic is an attorney in Los Angeles.  His column, which provides timely information about pet legal issues, is an exclusive feature which was published weekly at Pets.com.  The information provided here is for educational and entertainment purposes only.  Always consult your own attorney for specific legal advice concerning your own pet or animal.

Delta's Story & Snapshots  l  Top 20 Breeds  l  Doggie Info.  l  About Breeds
Dining & Fun w/ Fido  l  Delta's Calendar  l  Pet Links l "Family of Friends"
Submit Pet Photos  l  E-mail Delta  l  Rescue/Adoption  l  Custom Pet Pages
Home

Deltapages.com

Site Design & Marketing By :  3clx