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Remembering Your Four-Legged Family
By Jean M. Beasley, Esq.

Note: The information contained in this article applies to California residents only. Residents outside of California should contact an attorney for information on the laws in their area.

One of the fundamental joys of life for many of us is the unconditional love and companionship of a dog, cat, or other domestic animal. Some of us even feel "owned" by our four-legged creatures and see them as members of our own family. In planning the disposition and succession of our estates, however, we often neglect to consider arrangements for the care of our pets after our own deaths. As a result, many formerly pampered animals end up in shelters awaiting adoption or are simply put to death because they cannot be placed owing to age, ill health, or bad temperament.

Studies have confirmed the benefits of pet ownership for the elderly living alone, including improved mental and physical health, often resulting in greater longevity. Yet many elderly individuals are reluctant to acquire a pet because they are concerned, understandably, that the animal will outlive them and will have no home after their death. Sadly, they deprive themselves of a relatively inexpensive way to improve their personal environment. A simple solution exists to address their concerns: making advance arrangements for a new home in the event they predecease their pet.

Those of us who are pet owners should take steps to ensure that our pets continue to have a home after our deaths. It takes only a small effort to provide for our trusted and loyal companions (a dog's loyalty is, of course, unquestioned; cats are loyal, too, so long as you feed them) for their role in enhancing our lives.

Planning for the care of our pets is not so simple as leaving a sum of money directly to them. No matter what human attributes we may ascribe to our pets, under California law, they do not qualify as "persons" entitled to receive such bequests. Therefore, an animal can do nothing with a cash bequest without the assistance of a person.

We may provide for our pets in other ways, however. This article will explore several different options for achieving that goal.

Finding a Dependable Caretaker

Whether you plan to provide for your pets formally or informally, the critical first step is to identify a trusted family member or friend who is willing to assume responsibility for their care. Reviewing with your successor caretaker your day-to-day routine, the degree to which you have hopelessly spoiled your pets, and any special health issues will give him or her a good idea of what to expect. Once you have found the ideal successor servant, um, I mean master, you may wish to write him or her a letter memorializing your agreement.

Even though you may feel comfortable with these informal arrangements for your pets' welfare, it is still wise to document your plan by including a provision describing your agreement in your will or living trust. Your caretaker will then be reminded of his or her promise to you and may feel an increased moral obligation to honor what is otherwise an unenforceable commitment.

The easiest method for providing for your pet is simply to "bequeath" him or her to your selected caretaker. "As we discussed before my death, I leave my dog Carmen to my brother, Scott Beasley." Carmen now belongs to Scott (or vice versa). As an incentive, you may also wish to leave a sum of money to the caretaker, conditioned upon his willingness to carry out the agreed upon commitment: ". . . Together with the sum of $5,000, said funds to be used to defray the costs of the care of my dog Carmen for the remainder of Carmen's life. Scott may retain any funds remaining after Carmen's death as an expression of my gratitude for his care of her." Depending upon your compulsion to control from the grave, you can specify the care Scott is to provide: "Such care shall include, but not be limited to, boarding, feeding of premium pet food, and veterinary care."

Because no third party is supervising Scott's activities, his failure to discharge his responsibilities as you have directed will be purely a matter of his conscience. It is of utmost importance, therefore, that you choose your caretaker wisely.

Authorizing Your Personal Representative to Supervise the Adoption and Care of Your Pet

If you are unable to identify a specific caretaker who will care for your pet, you can instead direct your personal representative to arrange for his or her adoption. You may also give your personal representative the discretion to pay the new caretaker a specified sum of money for the pet's care in his or her new home.

If your estate plan includes a continuing trust, you can direct the trustee to reimburse the caretaker on a periodic basis for food and other routine care and on a case-by-case basis for any extraordinary items (illness, injury, etc.). Any funds remaining after the pet's death can then be distributed either to the caretaker or to your other beneficiaries. The charm of this arrangement is that your trustee can monitor the quality of your pet's care.

Relying on Charity

Still another alternative is to approach an organization willing to care for your pet after your death. Certain organizations, such as spcaLA and the Amanda Foundation, both in greater Los Angeles, will take in your pet and, assuming no health or behavioral problems, will arrange for his or her adoption. Both organizations will place your pet without charge, but they will, of course, welcome any contribution you can make to defray the cost of interim boarding and care. Such deductions are tax deductible by your estate if made in the form of a bequest.

Other organizations may take in your pet after your death in exchange for a donation to their cause. In researching such organizations, you should exercise the same care as you would when selecting an individual to care for your pets.

Even if you have made arrangements with a trusted caretaker, you can combine the care of your pets with making a charitable contribution by participating in a charitable reminder trust program. Under this kind of program, you can make a present donation of cash or appreciated assets in trust to a charity. You and the charity agree upon a rate of return (e.g., 7 percent of the trust) that will be paid to you for your lifetime.

After your death, for a period or time approximately equal to your pet's remaining life expectancy, the income will be paid to the individual you have selected to care for it. At the pet's death, the trust will terminate, and the remaining funds will be distributed to the charity. A number of organizations, including spcaLA, offer this kind of program.

When you make a present gift to the charity, you are entitled to take a current income tax deduction for the present value of your gift. You will also avoid paying capital gains on any appreciated assets used to fund the trust. Finally, you will remove the gifted assets from your estate, potentially decreasing the amount of estate taxes your estate will pay.

Creating a Pet Trust

Periodically, news articles appear about individuals who have left a portion of their estate in a trust, perhaps even their home, for the express purpose of allowing their pets to live out their days in the same environment as when their owner was alive. After the pets' death, the "pet trust" assets can pass to human beneficiaries. For most pet owners such provision would be considered excessive, but for those of independent means and a particularly strong devotion to their four-legged companions, that option nevertheless exists.

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It is important to acknowledge that, regardless of our efforts to provide for our pets, there is no absolutely fool-proof way to guarantee that they will be as well cared for once we are gone as they are now. Nevertheless, making some kind of provision for them can ease any worries we may have about our pets outliving us, and can as a result greatly enhance our golden years by allowing us to enjoy their company.