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By Jon Bastian

We’ve all seen some variation of this scene in a movie or TV show. The family has gathered for the reading of the will at their late Aunt Clytemnestra’s lavish mansion. We have the heroic but poor niece and nephew who expect nothing, and the greedy grandson who wants everything. The lawyer opens the will and begins to read, finally arriving at the sentence that changes everything.

“I hereby bequeath my entire estate to my beloved dog, Tinkerbell…”

Much hilarity ensues as the niece and nephew try to protect the dog, and the grandson tries to steal everything. Only the outcome changes, depending on whether the movie came from Disney or Quentin Tarantino. The story device is so common that it even has a name: Pet Heir. However, as with many devices seen in TV or film, it is also a complete myth.

The sad and short truth is that, according to the law, pets are seen as mere property. Since property cannot inherit property, it is impossible to legally will anything directly to a surviving pet. When a person dies, their beloved cat or dog is considered to be just another part of the estate.

Rich people’s trouble

Even as wealthy and powerful a person as Leona Helmsley wasn’t able to provide for her Maltese, Trouble, as she had wished after she died. Despite setting up a trust to bequeath $12 million to the dog, courts later determined that this amount was excessive, reducing it to $2 million to provide for the dog’s care for life.

Ultimately, by the time Trouble died in December, 2010, she had probably received no more than $600,000, which provided for her annual care at about $ 197,000 per year. If that amount seems excessive, remember that $160,000 of it was to cover her caretaker’s salary and full time security, since the dog had received 20 to 30 death and kidnapping threats after the reading of the will.

In case you’re wondering, Helmsley originally left more money for Trouble than she did for each of the two grandchildren she did not cut out of her will. For her trouble, a judge in Manhattan later ruled that Helmsley was “mentally unfit” when she wrote the will.

The right way to provide

The “Queen of Mean” is far from the only person to have a court overturn the pet provisions of her will. The same thing could happen to you if the unfortunate circumstance of your pets outliving you should occur. However, there are ways to provide for your pets after you pass on, and here are five important tips on how to make sure they will be taken care of as you wish.

1. Name a new caretaker

Remember, since dogs are considered as property by the law, you need to treat your pets as such when you make out a will. Just as you might bequeath your car or house to a specific relative or friend, you need to do the same for any pets that need to be taken care of.

Be specific but simple: “I leave my dog Happy to my friend Jane Doe.” If you decide to set up a revocable living trust before your death, the instructions are the same, although it’s your choice on whether the caretaker and trustee are the same person (see below).

You should always discuss such arrangements with the person in question beforehand. Just as you should never buy a pet as a gift for someone who isn’t expecting it, you shouldn’t make your beloved dog an unwanted surprise after your funeral. Helmsley originally bequeathed Trouble to her brother, who refused to take the dog.

To be doubly safe, include an alternate in your will: “Should Jane Doe be unable or unwilling to take Happy, I instead leave the dog to my cousin, Joe Smith.”

2. Provide for your dog’s care

Since you can’t take it with you, it’s a good idea to also leave some money to the person you specify as your dog’s new caretaker. It’s not nice to stick someone with an inheritance that ends up costing them money, after all, and if they can’t afford to care for your dog, you again risk having it wind up in a shelter or with strangers after you’re gone.

Specify the amount and purpose when you make the bequest: “I leave my dog, Happy, and the sum of $10,000 for her care, to Jane Doe. If Jane is unwilling or unable to take Happy, I leave her and the $10,000 to Joe Smith.” Note that you should specify that the sum of money is for the dog’s care. If you outlive Happy without changing the original will, then Jane or Joe will not receive the money mentioned.

One important note: Consider leaving your dog to one person and the money to another if that monetary award would adversely affect the beneficiary. For example, if your parents are on Social Security and you want to leave them your dog, also leaving them a large sum of money could cause their benefits to be temporarily reduced, so that the cash winds up not helping them at all with the dog’s support.

Again, discuss arrangements in advance, and consider your beneficiary’s financial situation before writing them into the will.

3. Don’t complicate things

Along with the “Pet Heir” story line, we’ve probably also seen many movies or TV shows with the conditional will — “My nephew will inherit $5 million if he marries by December 31,” or “My entire estate goes to whoever spends the night in a haunted house.” Again, these make for great fictional drama. In real life, they can make for the wrong kind of drama.

While it may seem like a good way to make sure that your pet is taken care of after you’re gone, such clauses are complicated, prone to misinterpretation, and easily contested. They’re also very hard to enforce.

Say that you stipulate your dog and money goes to Jane Doe, but that if she doesn’t care for the dog, then the money goes to an animal shelter of your choice. Once your will is out of probate, it’s up to that other beneficiary — the animal shelter — to make sure that Jane is doing her job.

If Jane is in California and the shelter is in New York, it would be completely impractical for them to make sure she’s living up to the terms. It’s much better to do your homework in advance, find someone you can trust completely, and then make your bequest with no strings attached.

4. Who do you trust?

A pet trust is an alternate method for providing for your pets, but keep in mind Leona Helmsley’s story. She provided the $12 million for Trouble through a trust, but the courts still reduced the amount because it was excessive for the dog’s care.

The idea of pet trusts is relatively new, although every US state except four (Kentucky, Louisiana, Minnesota, and Mississippi) now allows them. Trusts are more complicated than wills and, should you decide to go this route, you should definitely consult an attorney.

Remember: Be sure to set up the trust as revocable. An irrevocable trust cannot be changed, even by the person who made it, once it is in effect. The basic elements of a pet trust :

  • The pets included in the trust
  • The pet’s caretaker after your death
  • The money to be provided for the pet’s care
  • Detailed instructions on the pet’s care
  • A trustee who ensures the money is being spent as specified
  • What happens to the money if your pet dies

The other advantage of setting up a trust is that it can go into effect before your death, should you become temporarily or permanently unable to take care of your pets through illness or injury. A will, on the other hand, has no effect until its author is deceased.

5. Update, update, update

Circumstances change, so it’s a good idea to take a look at your will or trust annually. Maybe the friend you wanted to take care of your dog moved far away, or changed their mind about the responsibility. Perhaps the pets you originally designated have themselves passed on, and you have to specify new ones. You may have experienced a change in financial circumstances, good or bad, so you need to increase or decrease the money bequeathed.

Remember, if you designate an amount of money to care for your dog to a specific person but do not also specify that your dog still needs to be alive, courts will probably rule that they get the money anyway.

It is possible, by the way, to avoid any problems with the money being misused by leaving it to your veterinarian instead, with a specific written agreement on how much they will get and what treatment they are expected to provide in exchange. Again, plan ahead and discuss it with your vet well in advance of the need.

Avoiding Leona’s trouble

We like to avoid thinking about or discussing the inevitable, but when it comes to our pets, they cannot speak for themselves and are still considered as nothing more than property. If you happen to have one living relative who loves your dog and will get everything anyway, great.

If you don’t — and that probably includes the vast majority of people reading this — then you need to prepare for your dog’s future needs now, even if you think you’ll outlive them by a long time. A will or trust is always subject to being changed or updated until it goes into effect, but if you have neither one when you die, the fate of your pets is up in the air.

It doesn’t need to be a complicated process, but it does need to be done right. Fortunately, there are many organizations that provide low cost assistance, particularly when it comes to wills and trusts. Nolo Press publishes legal forms and do-it-yourself books, and the website LegalZoom will help you prepare many documents, including wills, online.

Ultimately, Leona’s dog Trouble got less than five percent of what she wanted to provide for her. If you’d like to make sure that your pets get one hundred percent of what you want them to when you’re no longer around, provide for them now. It’s easier than you think and you’ll sleep easier knowing that your non-human loved ones will be taken care of.

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