Estate planning mistakes are more common than you may think, especially when pets are involved. It’s no secret that we dearly love our pets. According to the US Census Bureau, 60 million Americans own pets. And they don’t hesitate to spend money on their care. Over the decade ending in 2017, the amount of money humans spent on their beloved pets had doubled — making it a whopping $5.8 billion dollars!
Our concern for the welfare of our pets has even made significant changes in the law.
In recognition of the fact that most people treat their animals as “family members,” California legislation distinguishes companion pets from inanimate property (like furniture) and even allows judges to create “shared custody” agreements for pets of divorced couples.
Even the language surrounding pet ownership has changed.
Legislation now exists in several states which changes “pet owners” to “pet guardians.” While this may reflect how people feel emotionally about their animals, according to the American Veterinary Medical Association (AMVA) the change to legal guardianship language negatively impacts the health care available to pets—because a “guardian” is a fiduciary and may only act in the best interests of his or her “ward”— and will probably lead to a host of legal problems.
Given this dedication to our pets, it’s not surprising that many people want to incorporate caring for their pets as part of their estate planning. What may be surprising is the fact that in reality, when someone becomes incapacitated or dies, most of the time the family pet is completely forgotten—oftentimes being sent off to an animal shelter. To avoid this sad truth, many people try to provide for their pets without the assistance of an estate plan attorney.
But attempting to design an estate plan on your own—whether it is to provide for your pets or for general disposition of your property—is never a good idea.
And so, many well-intentioned pet owners tend to make estate planning mistakes.
Here are two of the biggest estate planning mistakes people make when planning for a pet:
- Relying on a verbal agreement to take care of your pet.
The first common estate planning mistake estate and probate lawyer Samantha J. Fitzgerald sees when it comes to trying to include pets in your estate planning, is having nothing more than an oral agreement.
For example, let’s say you have a dearly beloved dog. You ask your dog breeder/trainer friend to take care of your dog in the event of your death or if you should become incapacitated. He agrees.
But you don’t get that in writing.
All you have is an oral agreement.
While such oral agreements can be enforceable, certain agreements must be in writing to be legally enforceable. One major problem with enforcing any oral agreement is that can be subject to claims of ambiguity regarding the contract’s terms. Without a written agreement, it is difficult to prove exactly what the parties intended. Keep in mind that oral agreements can lead to litigation, and litigation is time consuming as well as expensive.
Finally, while you may not like it, for purposes of ownership, animals in Florida are considered “personal property.” Which means that you must transfer ownership of your pet—in accordance with local laws and in writing. This, then, makes an oral agreement ineffective for validly transferring ownership.
- Leaving Money to Your Pet in Your Will
Another common mistake that we see when people try to provide estate planning for their pets is leaving money to their pet in their Last Will and Testament (“Will”).
This frequently fails for a number of reasons. First, it must be understood that no matter how much you love your pet, and despite many current pet law inroads, in the eyes of the law pets are still “property.”
And you cannot leave “property” (i.e., money) to your “property.” Animals simply don’t have the legal capacity to inherit property.
Leaving your pet to someone in your Will along with money to be used for the pet’s benefit does not always work either. Such gifts are at times tolerated and at other times invalidated by the U.S. courts.
Also, it is worth noting that the person you leave your pet to in your Will is not legally obligated to take him or her. A beneficiary has the right to refuse a testamentary gift for whatever reason.
What Should You Do?
So, if leaving your pet to someone in your Will doesn’t work and you can’t rely on oral promises, what should you do if you want to make planning for the care of your pet(s) part of your estate planning?
The answer: contact an estate planning attorney and have her create a pet trust for you.
Florida law currently permits pet owners to create a trust for their pet.
But it takes experience and a solid knowledge of trust laws to create a proper pet trust. One that will give you peace of mind knowing your beloved pet will be taken care of when you’re gone.
Protecting Your Family is Just a Phone Call Away.
Providing you peace of mind and making sure your loved ones —both human and animal—are taken care of is what the experienced attorneys at the Law Offices of Samantha J. Fitzgerald do. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected].