You can plan for what will happen to your pet after you die. You have several options, but using your will or living trust to name a new owner for your pet is probably the easiest and most straight-forward way to make sure your pet is well cared for.
Legally your pet is an item of property, and when you die, it will have a new owner. You can make your decision legally binding by including it in your will or living trust using a provision like this one:
Be sure that the gift of your pet is not a surprise. Talk to the people you want to take the pet, and make sure they are really willing and able to do it. They may adore your pet, but if their children are allergic to it or they live in a high-rise building, they simply may not be in a position to take it.
Because circumstances change—your first choice for someone to take your pet could take a job that requires lots of travel or move into a small apartment—it's always a good idea to line up a second choice. You should name this person as an alternate beneficiary in your will or trust, too.
If you don't name a new owner in your will or trust, one of two generally undesirable consequences will result:
This means that, absent a lucky coincidence, the person who will legally inherit your pet probably won't be the person you would choose.
It's a big responsibility to take care of a pet. So when you leave your pet to a new owner, consider also leaving that person some money, to go toward the costs of caring for the pet. It's usually a good idea, even if you think the new owner can easily afford to pay for the pet's upkeep. A pet who arrives with a full dinner dish is likely to be more welcome than one who is on the dole.
Here's a sample will clause that leaves both pet and money:
You should know that although the provision leaving the $3,000 to Brian is legal and enforceable, the part about using the money to take care of Taffy probably isn't. Your friend Brian could lose the whole stash in bad investments, and there wouldn't be a thing anybody could do about it. But this shouldn't be a big worry. You should leave your pet, and money to care for it, to someone you trust.
If Taffy isn't alive when you die, Brian won't get the $3,000. That money, along with any other property that the will doesn't specifically give away, will go to the person named in the will to receive the "residuary" of your estate.
It is possible, but complicated and usually impractical, to make the gift of the pet conditional on certain acts of the new owner. For example, you could put a clause like this in your will:
Who will enforce the condition? The executor of your estate (the person you name in the will to carry out your wishes) has the responsibility as long as the estate is still before the probate court. In most states, it takes about six months to a year to get probate wrapped up and all the property distributed. After that, it's up to the alternate beneficiary—in this example, the McDonough County SPCA. Either way, it's a lot of trouble, and conditional bequests are usually a bad idea. Once again, don't rely on legal niceties to protect your pets. Arrange for them to be taken care of by people who know that a pet is more than another piece of property.
In unusual circumstances, you may want to consider leaving a pet to one person and money for the pet's care to someone else. It may be important to consider a plan like this if the person who will care for your pet receives some kind of public assistance—Social Security disability (SSI), for example. If that person receives several thousand dollars from you in a lump sum, it might mean the grant would be cut off until the money is spent—a situation that, obviously, benefits neither your friend nor your pet.
Or perhaps you don't quite trust the pet's new owner to use the money in the way you have in mind. Let's say, for example, that your friend Brian is great with pets and has a place in the country, but his love of animals extends to the ponies—that is, he can't stay away from the track when he's got some extra cash in his pocket. You could leave your pet to Brian and $3,000 to Brian's sister Karen, with instructions to give it to Brian in chunks that he won't find quite so tempting.
Here are some sample clauses:
Again, remember that legally, the $3,000 goes to Karen outright if Taffy is alive when you die. The instructions about how to use it aren't legally enforceable—but they make your wishes clear, which should be enough if you choose the right people.
What if your pet dies before you do, but your will still leaves someone money for the pet's care? If the beneficiaries fight about it in court, the money you intended to be used for the pet's care will probably still go to the person you named. For example, look at the following will clause, which was the subject of a lawsuit:
Dutchess died before her owner did, but a Colorado court ruled that Morrison should get the $5,000 anyway. (In the Matter of the Estate of Erl, 491 P.2d 108 (Colo. App. 1971).) Other courts faced with similar situations have ruled the same way. The theory is that the obligation to care for the pet doesn't arise until after the gift of the money is made. And because it's not the beneficiary's fault that she can't carry out the condition, she's entitled to keep the gift.
If you want to prevent a similar result, it's quite easy. When you write your will, all you need to do is word the clause so that the money is given only if your pet is still alive. Here's a clause written so that the beneficiary gets the money only if the pet is still living at the time of your death: