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July 16, 2012 at 6:00 AM

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Legal Q&A: Pets, wills and animal trusts

adambubba.jpgAdam Karp, a lawyer in Bellingham pictured above with Bubba, exclusively practices animal law in Washington and Idaho. He answers questions about pets and estate planning.

Question: If I don't have a will or made other legal arrangements, under Washington State law what happens to my pets when I die?

Answer: Barring the existence of an animal trust, state law (RCW 11.04.015) generally will treat the animal companions as estate property, passing to heirs per the state's intestacy laws -- i.e., first the spouse/domestic partner, then the children, then the parents, then the siblings, then grandparents, then aunts and uncles.

Question: What legal protection does a will or trust provide me and for my pets?

Answer: It gives posthumous decision making power to the one in the best position to determine who will acquire ownership and possessory rights in your animal companions - i.e., you!

A will to provide for an animal companion typically takes the form of an outright legacy (distribution of money) to a person for the benefit of the animal. A trust, on the other hand, contemplates using the trust corpus and interest for a longer period of time, generally the lifetime of the animal.

A distribution of money from a will lacks the reliability and recourse of a trust, because the recipient of money under a will could just take a trip to Hawaii and not use it for the animal; whereas the trustee owes a fiduciary duty to use the trust assets according to your explicit instructions.

Question: How important is designating a guardian? How can I be sure my pet will be getting the kind of care I want him or her to have?

Answer: Washington law does not technically recognize "guardians" of nonhuman animals, though the State of Rhode Island favors that terminology over owners.
Ch. 11.118 RCW, passed in 2001, allows Washingtonians to identify a trustee to manage assets for the benefit of designated animals as well as a custodian to care for the animal after you become incapacitated or die.
Nothing prevents the trustee from also serving as custodian, but if you want to eliminate any appearance of impropriety or self-dealing, designating two individuals - one as money manager, one as caretaker - protects both the trust assets as well as the animal..
Question: How specific can I be in detailing my wishes -- such things as type of food my pet is fed, how often the pet is exercised, where he/she sleeps, continued medications and vet care, etc. What can an owner realistically expect a guardian to do?
Answer: Be as specific as you desire, including arrangements such as diet (raw food), scheduled activities (play time, walks, grooming), geographic restrictions (no living in excessively hot or cold locales), travel conditions (e.g., no air transport), cremation and burial.
This is your only opportunity to maximize the likelihood that your animal companion will not suffer unduly in your absence.

Question: What if, after I'm gone, the designated guardian is unable to be the guardian (because of, say, a death or disability) or decides he/she cannot or will not be the guardian? What happens to the pets? Should I make provision in my will or a trust to cover this?

Answer: Designate a first and second alternate caretaker, or permit the trustee (if you use a trust) to appoint a caretaker. If the trustee and caretaker are the same under your hypothetical, the court will name a trustee per RCW 11.118.070.

The court also can enter orders to carry out your intent. And if the trustee has engaged in suspicious misconduct, any person with an interest in the welfare of your animal may petition the court for an order appointing or removing a person designated or appointed to enforce the trust. (RCW 11.118.050.)

The "poor man's animal trust" arguably lacks the enforcement mechanisms of Ch. 11.118 RCW, but if you trust the legatee (the one receiving the bequest or legacy of the animal and money related to the care of the animal), you can just state your desire in the will to give your animals to Individual A, with a certain amount of money to care for the animal, followed by a provision that if Individual A cannot or will not accept, then you alternatively elect Individuals B and C.

Unlike the trust, however, if Individual A simply pockets the money and euthanizes the dog, traditionally such despicable behavior carried no legal consequences because the terms were deemed unenforceable (also called honorary or precatory). This is the case, although your estate might argue the gift was conditioned on the recipient complying with your wishes, in which case the estate may try to sue for damages, or the court might construe the gift as a constructive, or de facto, trust and forcing the recipient to disgorge the money she received under the will.

Note that an animal trust assumes that money passes into a trust for the care of the animal. So if you intend simply to transfer ownership and possession of an animal -- but not also provide money for the animal's care -- you are not creating a trust.

Question: How binding is the designation in a will or trust, should the next of kin -- and not the designated guardian -- want the animal or disagree with details, such as money set aside for the animal's care?

Answer: Very binding, barring evidence of fraud or undue influence or other grounds that would warrant negating the will.

Question: Should economic compensation be included in the package?

Answer: Yes, if possible. The "gift" of a companion animal, especially if unexpected, may come with such significant financial responsibility as to become a penalty.

Foisting an animal's care upon another without the wherewithal to sustain a level of care to which you and the animal were accustomed is not only cruel to the animal but unfair to the legatee.

I recommend having a heart-to-heart discussion with the proposed legatees, obtaining their consent and discussing the dollars and cents of any such arrangement to avoid him or her having to look a gift horse in the mouth.

Question: Are there guidelines for determining how much to leave for a dog or cat? For example, how much do you figure for food, vet and other care and amenities per year. Then add on the compensation. What happens to that money if the pet dies earlier than expected and if there is money left over?

Answer: No legal minimum exists, but it makes sense to leave enough principal so that income therefrom can pay for the animal's needs over the remainder of his or her life.

On average, Americans spend $750 to $1500 a year on food, treats, veterinary care and miscellaneous expenses for a dog or cat.

One guideline seeks to leave at least $1000 per year of the animal's projected remaining life span, with an additional $10,000 to cover emergency and geriatric diagnostics and surgeries (like humans, most medical expenses are incurred in the final years of life).

Horses and parrots, however, can far outlive dogs and cats by as much as a factor of 2 to 3 (for horses) and 5 to 10 (for parrots like macaws), making funding extremely important to avoid them being abandoned, euthanized or sold.

If the animal dies with money left in trust, then the trustee must transfer the trust income first as directed by you, then (if created as part of the will) per the residuary clause of your will, and then to your heirs if they are alive. (RCW 11.118.040.)

Question: What kind of protection does a will or trust give me should the guardian not follow the stipulations listed, such as selling the animal or giving it to someone else to care for, not providing proper veterinary care for the animal, putting the animal down for mere convenience sake, etc.

Answer: If you use a trust, you can empower the trustee to remove the caretaker and appoint another. If the trustee and caretaker are the same, then, per RCW 11.118.050, as described above, any qualifying person can ask the court to take action.

Question: What if I use a will?

Answer: RCW 11.118.050 will not apply in the case of a will. Only your personal representative (also known as executor) can attempt to enforce the terms of the will.

Question: Do you have any general guidelines for including pets in a trust or will?

Answer: Imagine you are giving a eulogy for your animal. Pay attention to the recurring themes and highlights. They signify fundamental needs, interests and preferences that must receive treatment in any will or trust.

Adam Karp

Adam Karp founded and served as the first chairman of the Washington State Bar Association's Animal Law Section and has held executive committee positions since then. He also has served as vice chairman of the American Bar Association's Animal Law Committee since its formation. He regularly writes about and speaks around the country on animal law, and he has taught animal law at the University of Washington School of Law and Seattle University School of Law since 2004.

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