The purpose of a will is to provide instructions to those you leave behind, as to how to distribute your property upon your death. Under the law, pets are considered property, as well. So, you can leave instructions in your will regarding who should receive your pet when you die. But, this is not the only choice you have in pet planning, and frankly, it may not be the best choice. Deciding whether to use a trust or a will for pet planning is a personal decision, which depends on your specific needs.
Pet planning options for pet owners
There are basically three widely known estate planning options for pet owners: trusts, wills and pet protection agreements. As with all things, each of these options has its own advantages and disadvantages, so discuss your options with your estate planning attorney. Here, we will discuss the differences between using a will and creating a pet trust. Including provisions for your pet in your will, that appoint a specific caregiver, while leaving funds to pay for your pet’s care, is a simpler, cheaper option. A trust, while more expensive and involved, may provide more stability and protection for your pet by appointing a trustee to manage your pet’s care after you are gone.
Provisions in your will are not legally binding
One of the most important differences between using a will and a trust for pet planning is the fact that the terms or a will are not legally binding on the caregiver you choose for your pet. A will only explains to the court how you want your estate distributed after your death. Once you transfer your property, including your pet, to a beneficiary, the power of the court ceases.
In other words, your chosen caregiver has absolutely no legal obligation to keep your pet or to use the funds you provide for the benefit of your pet. The terms of your will in this regard cannot be enforced by the court. This may be an important issue if you are not certain that your chosen caregiver will carry out your wishes.
Pet provisions in a will are useless if you become incapacitated
Obviously, the terms of a will do not go into effect until you pass away. This means that if you become incapacitated, the will cannot provide any protection for your pet. Only a trust can be created to take effect upon your incapacity. Even upon your death, the terms of your will do not go into effect immediately, as there are many steps to the probate process which take time. As a result, your pet’s care will be postponed until your estate is finally settled and the probate proceedings completed.
The advantages of pet trusts
Trusts can be drafted so that they become effective upon your incapacity and upon your death. This flexibility makes a trust better at protecting your pet’s future. Whereas, a will can only take effect upon your death. Another advantage of a pet trust is the control you can have over the disbursement of money to be used to care for your pet. You can actually appoint a separate trustee to be responsible for distribution of the funds to the chosen caregiver. The funds can also be invested through the trust for the benefit of your pet. Finally, a trustee can make sure that the caregiver follows all of your instructions.
If you have questions regarding pet trusts, or any other pet estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.