None of us wants to think about death. I mean, how depressing, right? However, when you have four-legged kids who depend on you just as much as two-legged kids, you MUST.
Who gets them? Will they be cared for properly? If I die before I wake, who will feed “Jake”? Huge, legit concerns. And one of them made for a pretty fine country song back in 1991. I’m not telling you which.
In Kentucky, and most states – when someone dies (decedent), a court procedure must be initiated to ensure their belongings are disposed of properly. This is probate. In Kentucky, the rules for disposing property differs depending on if the decedent had a will (testate), or not (intestate); and if the property is real estate (real property/realty) or personal (chattel).
As with many areas of the law, probate uses terminology that sounds like something right out of Game of Thrones. This is mainly because most of the terms came over from England; and have somehow stuck around. I’m not even joking.
In the eyes of the law, pets are considered personal property.
If the decedent died intestate, there are statutes that clearly and strictly govern how property is to be disposed. This is called “intestate succession”, and trust me – you don’t want to read about it because its incredibly boring. But….the important part is you have absolutely no control over who gets your pets. None. The law is clear, its followed to a tee, and no one will have any ability to deviate from it. Not what you want.
If the decedent had a will, courts GENERALLY follow it; with some exceptions that I wont go into for fear of putting you to sleep. Your will, gives you the tools you need to care for your pets after you die. You can name who you want to care for your pet, leave money for that person to care for your pet, etc.
So, what is MY personal favorite pet friendly estate planning vehicle, you ask?
Trusts; testamentary trusts (OK I’m allowed one lame Bond/estate planning joke per piece).
A trust is a legal entity created by law, where one person (Grantor) places property (corpus) in the possession of another (Trustee), for the benefit of someone/something (beneficiary). A testamentary trust is a trust created by a will.
Why do I like it better? Wills go through probate, probate goes through court, and a probate case must be eventually closed. Also, if you will money to someone to care for your pet; there’s no legal requirement they use the money properly. They could go buy a new car, new clothes, etc.
A trust on the other hand, doesn’t require judicial oversight; and it’s perpetual until the money runs out or the purpose for the trust ends. Plus the trustee has a fiduciary duty to use the money as directed in the trust, pursuant to the restrictions/guidelines in the trust document and state law. Finally it lets the will go through probate, and the probate be closed while the trust continues on.
I prefer trusts, but they too have their own limitations. Each state and each case is different; so definitely consult with an attorney (like me!) to discuss which choice would be best for you and your pet.