My wife and I recently rescued a six-year-old border collie/blue heeler mix named Kingsley. The first time we left him alone in our apartment he barked over 200 times in 10 minutes. We searched the internet for solutions to his separation anxiety and we tried everything from scented plug-ins and herbal powders to various food and toy combination strategies, all to no avail. It was not until we hired the right trainer that we were able to calm Kingsley down. The barking went away entirely, and he now spends hours alone in our apartment quietly.
I tell this story for two reasons. First, because planning for Kingsley and Kyle (our cat) is what led me to write this article. Second, because I think that there is a type of “separation anxiety” that attorneys can address in the estate planning process when we ask the question “What will become of our animals when we die?” (And while we are at it: who will take our pets in and/or feed them when we are injured, temporarily disabled, hospitalized or otherwise unavailable?)
The average annual cost of basic food, supplies, medical care and training for a dog or cat is $700-875. As pet owners, we need to think about who will pay this bill when we are gone. We need to think about whether our animals will have the same routine they have now. Most importantly, we need to ask whether they will end up at a shelter.
This last question is critical: in the United States, close to 500,000 pets end up in shelters every year when their owners die or become disabled. In shelters, five out of ten dogs and seven out of ten cats are euthanized because there is no one to adopt them. If we plan ahead for these events, we can ease our own separation anxiety and help our pets to live the way that we want them to when we are gone.
- Oregon’s History on Animal Rights:
Oregon has a strong judicial and legislative animal rights history, going back to early last century. In 1914, an Oregon state court ruled that when an animal was hurt or killed, its owner should receive more than just the market value of the animal. This “Special Value” law recognized that Kingsley is worth more to my family than the $80 adoption fee we paid at the shelter.More recently, ORS 130.185 became law in 2005, allowing Oregon residents to create legally binding pet trusts. Forty-four states (including Washington) now recognize some form of pet trusts. Additionally, ORS 114.215 allows friends and/or family members to take immediate pos-session of an animal and be reimbursed for any reasonable expenses incurred in caring for the animal during the probate of the owner’s estate.
The Oregon State Bar is one of the few in the country that has an entire section devoted to animal law. Oregon’s Lewis & Clark Law School was the first college in the country to publish an animal law review, its students were the first to organize a chapter of the Animal Legal Defense Fund, and it launched the world’s first post-graduate degree in animal law in 2011. Oregon is one of 43 states that classify animal cruelty as a felony, and 2010 saw Oregon become the third state in the country to ban sow stalls and gestation crates – small containers that limit the movements of pregnant pigs.
- Short-Term Planning
The first step in planning for pets is to address the question “who will take care of the animals in an emergency?” The short-term caretaker may be identified by an informal agreement like the one we have with our neighbor: he has a house key, knows the animals, and knows where their food is kept. We have listed him as an emergency contact at our pets’ day care locations, kennels and veterinarian offices. We have spoken with him about this arrangement and received his consent.Some of our clients have taken a more formalized approach to caring for their pets by executing powers of attorney that include clauses authorizing an agent to care for their animals. The decision on whether to make a formal or an informal agreement with the caretaker depends on a number of issues: proximity of friends and family, the amount of time and/or work the animals require and the animal’s expenses, to name a few.
Pet owners should put together caretaker instructions for the animal’s day-to-day care. This should include vet contact info, where important documents are kept, where the food is, and what the animal’s exercise routines are – among other things. The U.S. Census Bureau estimates that 22 percent of the nation’s dogs and 25 percent of our cats live in single person households. Creating a detailed set of instructions is particularly important for these pet owners, as it is less likely there will be another individual who is familiar with the pets’ day-to-day routines. A detailed instruction letter is also crucial if your pet has special dietary needs, medical concerns or training issues.
- Long-Term Planning
There are several tools that may be used to provide for animals upon the death of an owner. One popular method is through a bequest of money to a caretaker. There are two potential problems to be considered: the pet owner has no way of knowing that the assets will be used to cover pet-related expenses and there may be negative tax consequences to leaving the caretaker a sum of money outright. The first issue is one of trust between the pet owner and the individual. The second issue has been reduced somewhat over the last few years by increases in estate tax exemptions ($1 million in Oregon, $2 million in Washington and $5 million federal). Pet owners may consider providing additional compensation to the caretaker to cover any tax liability imposed due to the financial bequest. If a pet owner makes no provisions for his or her animal, the pet will become part of the owner’s residuary estate.Another option is to make a bequest in the owner’s will to the local Humane Society. In some cases the Humane Society will guarantee the placement of your pet in a home if you leave assets to the Humane Society. The Oregon Humane Society (the “OHS”) in Portland will make such a guarantee if you leave a gift of any amount to the OHS under their Forever Friends program.
The final way to address pet planning issues is through the use of a pet trust. A pet trust determines custody of the animal, provides instruction to the caretaker and pays for the animal’s expenses. Pet trusts can be stand-alone documents or they can be incorporated into the pet owner’s will or trust. A well drafted pet trust will include a primary caretaker and several back-ups, a trustee who is in charge of tracking expenses, preparing tax returns and managing bank accounts — and in some cases — a trust protector to monitor the overall performance of the trust to ensure the pet is being cared for properly. The Trustee may be the same person as the caretaker, however we often recommended selecting different parties to serve in these roles.
Regardless of whether pet owners take a formal or an informal approach to planning, it is most important that they have a plan and they write it down. ORS 130.185 instructs Oregon courts by providing for, “the liberal construction of oral or written instruments as enforceable pet trusts and not unenforceable honorary trusts.” The more evidence a friend or family member can show a court about the incapacitated or deceased owner’s intent, the more likely it is that he or she will be reimbursed for expenses and allowed to care for the pet in the manner the owner wanted.
- Conclusion
Sixty-three percent of American households have a pet. Many pet owners consider their pets to be part of the family. Unfortunately, hundreds of thousands of these “family members” are not considered when their owners prepare their estate plans. The results are often tragic.Proper planning for a pet’s needs involves analyzing the expenses, headaches and joys associated with pet ownership. It requires pet owners to be proactive in creating instructions for care and in seeking legal advice tailored to the owner’s needs. If done properly, this sort of planning can provide for the well being of the pet and can ensure the pet owner that their animals will be properly cared for. If done improperly, planning for pets may leave the beneficiaries, trustees and family members scratching their collective heads and asking, “What did the pet owner want us to do?” The concerned pet owner should seek the counsel of an experienced attorney, carefully consider the needs of each pet, invest the time to develop a plan, and then write it down.
Glen Goland is an estate planning attorney who utilizes his years of experience in both the financial and legal sectors to create estate plans that work for his clients, assess tax issues and efficiently administer trusts and estates. Contact Glen directly at ggoland@samuelslaw.com.
