Should You Leave a Gift to Your Pet in Your Will or Provide For Your Companion Animal Through a Trust?

An outright gift to an animal is void under the ruling of Estate of Russell.  In that particular case, the testator left a gift to her dog, Roxy Russell, via her will.  The court ruled that a dog could not be a beneficiary of a will under the California Probate Code.  However, this ruling does not preclude an owner from pursuing other options that will ensure the pet is well taken care of after its owner’s death.

First, an owner can set up a trust to care for his or her beloved animal.  In 1991, the California legislature enacted a probate code provision that allows individuals to create trusts for the care of a “designated domestic or pet animal.”  However, the problem with the 1991 version of this code section was that a beneficiary could not take action against a trustee who failed to administer the trust according to its terms.  The legislature addressed this problem by enacting a new version of the code section in 2009.  Currently, any trustee or beneficiary of the trust, person interested in the animal’s welfare, or a nonprofit animal welfare organization, may petition the court regarding the affairs of the trust.

The use of a trust to care for an animal has several benefits.  It is a flexible method for managing financial assets for the benefit of the pets until the last surviving pet departs.  Another benefit is that a living trust can include provisions for pet care that would be operative during an owner’s life-time incapacitation.  In addition, the trust provisions can include very specific instructions for the care of companion animals.

If you choose to create a trust, it should provide for the payment of all final medical and disposition expenses for your pet.  In addition, you should nominate a trustworthy caretaker, and alternates, or leave instructions on how to find a suitable home and caretaker for your pet.

Another way in which an owner can provide for a pet after the owner’s death is by choosing to leave the pets (and the money to care for them) as an outright “gift” to a responsible and trustworthy individual.  An owner can do this either through a will or a revocable trust.  However, before choosing this option, an owner should make sure that the chosen care-taker is willing and able to care for the pets after the owner’s passing.

If you are interested in learning more about how to properly plan out your beloved animal’s care after your passing, please contact the San Jose estate planning lawyers at Lonich Patton Ehrlich Policastri.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship