If you have an account with any social media platform, you have probably seen the heartbreaking picture of a serviceman’s German Shepherd guarding the soldier’s casket during his funeral. While this picture and story undoubtedly pulls at your heartstrings, it begs a bigger question: Who will take care of that dog now that the soldier has passed away?
Disclaimer: The information provided is intended for informational purposes only and should not be construed as legal advice.
As a volunteer with an animal rescue group, our partner, Mary Kate Speed, has seen several animals surrendered simply because the owner has died. As a foster parent, Mary Kate is more than happy to temporarily care for that pet, who is now scared and tense in their new surroundings, until a permanent home can be found. However, she often wonders if this pet could have avoided this scary "pit stop" to their new forever home if the owner had planned for this situation beforehand. Pet owners, be assured that you can care for your pets after your death, with specific provisions under a Will or Trust.
While some pet owners view their animals as their children, under the law in the United States, pets and other animals are viewed as personal property belonging to you, just like your clothes and your car belong to you. Over the years, a growing number of people have wanted to ensure that their pets can continue to have the life they have become accustomed to after the death of their owner. While not all pet owners can provide the accommodations that the famous heiress Leona Helmsley left to her dog, any owner can predetermine who will take care of their pet and provide ways to finance that care.
All pet owners know that there are significant costs associated with owning a pet, but not everyone has the resources to pay for an inherited best friend. The pet owner essentially has two options when they desire to provide money to support the pet. First, the pet owner can decide to leave a set sum of money directly to the person who is entrusted with the care of the animal. This is a simple provision, which can be written under a Will, but it can have unintended consequences. If there are not adequate restrictions on the funds, that person will get a lump sum and the pet but there will be no legal recourse if that person uses the funds on themselves instead of the pet and can keep the funds even if they do not retain ownership of the pet or, perhaps worse yet, euthanize the pet because they do not want the burden.
A better option is to establish a Pet Trust, which can be created under a person's Last Will and Testament or within a separate Trust agreement. While it might cost a bit more to prepare and maintain, the Trust can be written in a way that protects the Pet Owner's wishes for the pet, as well as the pet itself. In New Jersey, Pet Trusts are permissible under N.J.S.A. 3B:31-24. This statute requires the cash or other assets held in the trust to be used only for the "intended use" which would be detailed in the Trust agreement. So, if you want your pet continue to reside in your home for the remainder of their life, your house can become a part of that trust and the money can be used to maintain that house for the benefit of your pet. If the Trustee of the Trust is not using the house or the funds for the benefit of the pet as detailed in the trust agreement, then "a person appointed by the terms of the trust or. . . a person having an interest in the welfare of the animal" can request the Court to "enforce the trust or remove the [Trustee]." N.J.S.A. 3B:31-24(b). The person entrusted with the care of the animal and the Trustee of the trust do not need to be the same person, but if they are, another person should be established as "Trust Protector" to enforce the Pet Owner's wishes.
When we sit with clients who wish to provide for their pets, we discuss where they want their pet to live after their death and choose a few backup plans. Many people assume that their relatives will gladly take in the pet, but fail to consider not only the financial burden that comes with it, but also potential changes in circumstance such as illness or job relocation, so it’s a good idea to have an alternative; we also suggest naming an animal foster group or shelter as an alternative to a person, to make sure there is always somewhere for the pet to go.
If the client adopted their pet, then we will ask for a copy of the adoption agreement because more often than not that agreement will contain a clause that the pet must be returned to the adoption agency upon the death of the owner. From there, we can discuss whether or not that would be in the best interest of the pet and, if not, establish pre-death agreed upon alternative that is acceptable to the adoption agency so that chaos does not ensue after death.
If you have been concerned about the possibility of your pet’s care after your death and want more information on caring for your pet when you no longer can, you can request a consultation with the attorneys of LSS Law, LLC.