What Will Happen To My Pets When I Die?

A past client recently emailed me an article from the New York Post about a custody battle over a recently deceased person’s dog. The judge in the case ruled that the dog should be considered property, and that what was in the best interest of the dog was not something he was going to consider. As a result, the dog was given to the brother of the man who had died even though other relatives who wanted the dog claimed that the brother had neglected the dog’s care. My client asked me: “What will happen to my pets when I die?” Although there is not a ton of case law in this area, it appears there are three basic scenarios that can play out.

1. No Plan For Your Pets

If you die without a plan for your pets in place, what happens to them is going to up to the person tasked with administering your estate. As in the case discussed above, pets are generally considered property, so the law is going to treat pets as it does your favorite chair or your TV.

In the best case scenario, your friends and family are going to step up and find a new, loving home for your furry (or scaly, or feathered) family members.

Unfortunately, there is no best interest of the pet standard in Indiana (or in most states) so, under the worst scenario, your pets could be put down if that is what your estate administrator thinks is best.

2. Leaving Directions In Your Will

Because pets are considered property, you can write your wishes regarding the care of your pets into your will. A couple of years ago, an Indiana woman made national headlines after her death because her will specified that her dog was to go a shelter in Utah, or be euthanized, cremated, and buried with her. There was a public outcry when it appeared that the dog was going to be put down, but then the shelter announced it would, in fact, take the dog.

This case raised an important issue – sometimes the directions in wills aren’t followed. We never found out in this case since the Utah shelter agreed to take the dog, but would a court really have ordered the dog killed as the owner otherwise wished?

On the flip side – consider what would happen if you say you want your niece to inherit your pet cat, but she happens to live in a pet-free apartment. Is the court going to order her to take the cat? Probably not, which would mean the estate administrator is again put in charge, just as if you had no plan in place at all.

3. Creating A Pet Trust

A pet trust is a legally enforceable, yet relatively simple, estate-planning tool that can ensure pets receive the care they need after their owner passes away. Courts are much more willing to enforce trusts than they are terms in a will, so this is a much more concrete way to spell out your wishes.

Trusts allow you to do things like:

• Identify an individual or facility to house and care for the pet
• Provide specific care instructions
• Specify ways in which trust funds are to be used for the pet’s benefit
• Dictate the terms of future medical care of the animal

One of the added benefits of a pet trust is that it can be set up to spring into action before your death if you become mentally or physically unable to take care of your pets yourself. Say, for example, you are hospitalized, and it is clear you are going to be in recovery for a long period of time. If you have a pet trust that springs into action when needed, you will have peace of mind knowing that your wishes regarding your pet are being carried out.

If you want to make sure your pets are well taken care of after your death, or in case you become incapacitated, your best option is talking to an experienced estate-planning attorney about setting up a pet trust.