Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

Caring For Pets

When a pet owner passes, it is not always clear what will happen to the owner’s pet. This is especially true if there are no instructions left for the decedent’s personal representative or trustee on the health, maintenance, shelter and feeding for the abandoned animal. However, careful planning prior to ones death can reduce this concern.

In almost all situations, a pet is considered one of the family. However, under the common law, a pet is considered personal property of the owner and as a result must be conveyed to another person in similar fashion as furniture, automobiles or tools following the death of a pet’s owner. Unlike furniture, the pet is a living thing requiring feeding, maintenance and shelter to protect it for its remaining life. The question therefore becomes how can a pet be cared for and who is going to pay for its feeding and maintenance once the owner is deceased.

Because a pet is not person, it has no means of collecting a devise from a Will and taking such devise to a financial institution for investment purposes. As a result, the pet requires a person or entity to perform this function for it. The requirement for a person or entity to open a bank account for the pet means that the person or entity acts as a trustee for the benefit of the pet. Remember that a trustee is a person or entity that holds legal title to property for the benefit of another and who may be required to carry out specific duties with regard to such property. A trustee is also a person or entity that has been given the power to affect the disposition of property for another’s benefit. Thus, a trustee can be given the power to protect the animal following a person’s death or incapacity.

The author often gets questions about whether an appointed personal representative could act in the same manner as a trustee. Remember that a personal representative is a person or entity who manages the affairs of another by marshalling their assets, paying their debts and disposing of a decedent’s assets following death. A personal representative is not charged with the specific duty to manage the care and feeding of a pet for its remaining life. For that, you would need a trustee. Keep in mind that the general difference between a trustee and personal representative is that a trustee is charged with carrying out specific duties for another with regard to their property. Those duties can be operative prior to and following a person’s death.

So what can you do to ensure that your pet is taken care of? In Florida, the only means of making certain that your pet will be cared for is to have a trust prepared in advance of your death. The trust would need to be specific to the animal through a Testamentary Trust or general trust instrument.

A Testamentary Trust is one that is created under a Will and comes into existence following the death of the Testator. Generally, the Testamentary Trust will set aside a fixed amount of funds after a person’s death to be used for the health, care, safety and feeding of an owner’s pet. The funds are directed to a person or entity that will act as the trustee of the funds. The trustee can also be given specific duties to ensure that the pet is provided shelter and care during it’s remaining life. However, those duties can also be split between a trustee of the funds and a care taker who will provide the services necessary to care for the decedent’s pet.

In situations where the duties are split between two persons (a caretaker and trustee), the caretaker is generally reimbursed for any expenses that are incurred during the management of the pet (e.g. food, veterinary services, grooming, etc.). This allows the trustee of the funds to be certain that the pet is being appropriately cared for and the care taker to be certain that the pet’s funds are not being misappropriated.

The other means of making certain that your pet is managed is to prepare an Inter Vivos Trust. There are other names for trusts, (e.g. Declaration of Trust, Grantors Trust, etc.) all of which can result in the same outcome as an Inter Vivos Trust. For purposes of this article I’ll use the term Inter Vivos Trust to mean a trust that is operable while the maker (called Grantor, Settlor or Trustor) is alive as well as following death. An Inter Vivos Trust can be used to make certain that you pet is cared for in the event you are unable to manage your pet due to incapacity caused by dementia or the appointment of a guardian to take control of your property. In such instances, your successor trustee can take control of your pet and utilize the assets titled in the name of your Inter Vivos Trust for the use and care of your animal.

The consequences of failing to institute a means to care for your pet during your life and following death may cause your pet to be delivered to others who may not care or love them in the same manner that you would. Although this should not happen, it sometimes does causing the pet to eventually be abandoned or worse, mistreated.

If you are concerned about how your pet will be cared for following your death, communicate with the attorney of your choice and discuss the options that are available to you. Remember that your pet cannot speak for itself and needs a voice to protect it in the event of your death. By planning ahead, you can avoid later issues and moments of anxiety about how your pet will be cared for.

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