Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.

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It's a new year, so you decide to get your affairs in order and write a will. After careful consideration, you decide that you would like your estate to be used to care for your best friend of many years who has no source of income of her own. You go to your lawyer to have the will drawn up, but she tells you that you cannot provide for your best friend in your will. That is because your best friend is a Beagle named Lucky.

Lucky cannot own property. Therefore, if you wish to provide for Lucky in your estate plan, property must be placed in trust for her. A trust is a legal arrangement where one person, the trustee, holds the property for the benefit of another person, the beneficiary. Again, Lucky loses out because she is not a person. As a "beneficiary," she cannot take legal action to enforce her "rights" in the trust.

Legally, the problem of caring for a pet after death has traditionally been "solved" through the use of "honorary" trusts. The owner leaves the money in trust for the pet. The trustee is also the caretaker for the pet. Because the pet cannot enforce its rights in the trust, the owner is really relying on the honor of the trustee to carry out the wishes of the owner.

Alternatively, the owner can choose one trustee and another caretaker. The owner can then direct the trustee to distribute funds to a caretaker each month that the pet is living. The distributions provide motivation to keep the pet alive. Such a trust could work for cats and dogs, but some birds can live for up to 100 years.

This issue is important to a great number of people, as evidenced by the fact that the Bar Association of the City if New York has published a brochure entitled "Providing for Your Pets." The brochure states: "There are three situations in which a pet owner should plan for the care of the pet. (1) On the death of the pet owner, provisions are necessary in the pet owner's Will, to provide effectively for comfort and care for the pet. (2) On the death of the pet owner, advance arrangements should be made to protect the pet during the period between the owner's death and the admission of the Will to probate. Too often this period is not considered. Although a Will can make provisions for the care of the pet, no action can be taken by the Executor to carry out these provisions until the Will has been admitted to probate and the Executor has received the authority to proceed by the issuance of letters testamentary. The time between death and the authority of the Executor to act can vary between several weeks and several months. Plans must be made to ensure care for the pet during this interim period. (3) Upon the incapacity or hospitalization of the pet owner, advance arrangements should be made to ensure care of the pet while the pet owner is hospitalized or incapacitated." (The brochure can be found online at www.abcny.org.)

Several organizations have begun programs in response to this need. The College of Veterinary Medicine at Texas A&M University in College Station, Texas, has established the Stevenson Animal Life Care Center. According to the Center's Website, it is "a privately funded, state-of-the-art animal care program designed to provide personalized care in a home-like environment." The Center "provides the physical, emotional, and medical needs of companion animals whose owners are no longer able to provide that care."

Unfortunately, the program is very expensive, and depends on the age of the pet owner. (The younger the owner, the longer the time before the pet arrives, presumably.) For an owner 30 - 39 years old, an immediate payment of $10,000 is required, or a bequest under a will of $100,000. For an owner 70 years of age or older, the immediate payment and the required bequest are $50,000. These fees are for small animals like cats and dogs. Fees for large animals such as horses are approximately twice as much.

Lucky's luck may be changing, however. Illinois State Representative Terry R. Parke, R-Schaumburg has sponsored House Bill 130 which provides that trusts for pets are valid under Illinois law. The bill has passed the Illinois House and must now pass the Senate.

Ultimately, however, the care of the pet will be dependent upon the trustee. If the owner has a trusted individual, the owner can leave the pet and some money to the trusted individual. If there is no individual who can care for the pet, a corporate trustee may be necessary. But would one serve in that capacity? George Laubner, Vice President of Hickory Point Bank stated that if such trusts were made legal and if their clients wanted that service, they would look at providing it. That would make Lucky very lucky indeed.
Posted in: March, 2003
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