Drafting estate planning documents to provide for the care of a pet first involves designating a party who is willing and able to take care of the pet when the owner dies or becomes incapacitated.  For this reason, the clause delineating the beneficiary to receive the pet may resemble a clause appointing a trustee or other fiduciary.  In any case, in drafting language designating the “caretaker” for the pet, remember that an animal is considered tangible personal property, which can be disposed of in a person’s estate plan in the same manner as a car, furniture, jewelry, and the like.

The second issue that must be addressed is the financial means of providing for the care of the pet if the own is deceased or incapacitated.  The most common approach is to place the burden upon the caretaker, either intentionally or unintentionally.  Practically speaking, this is an acceptable alternative if the caretaker also receives a significant portion of the estate and is completely trustworthy.  However, if the caretaker is a specific individual or organization who would not otherwise be a beneficiary of the estate, then the pet owner should also consider gifting an additional amount of money for caretaking expenses and/or compensation of the caretaker (referred to herein as the “caretaking funds”).  (To download a Microsoft Excel 2002 spreadsheet that computes estimated caretaking funds, right-click here.)  In many cases, however, an outright gift or bequest may not be appropriate.  What if the primary caretaker is rendered unable or unwilling to take care of that pet?  What if the primary caretaker is a spendthrift?  Worse still, what happens if it becomes apparent only after the owner’s death that the primary caretaker was incompatible with the pet?  Even if the pet owner has complete confidence in the caretaker, what if that person is unable to take care of that pet when the time comes?  The only legal mechanism that can adequately address these issues is a trust, as discussed in the next section.