Articles

By: Amanda L. Dean

This article is intended for educational purposes only and is not intended to be, nor should it in any manner be construed to be, the giving of legal advice.

Introduction

In today's society a pet is more than just a dog or a cat. Many dog and cat owners consider their pet to be a like a child or family member. When we execute documents to ensure that our property and children are taken care of after our deaths or in the event we become ill or incapacitated, a family pet is often overlooked.

Legally, a pet is considered personal property and upon our death our property would be passed along to our heirs. In Georgia, if a person dies without a will, property passes by intestate succession to a person's spouse and descendants. If a person does not have a spouse or descendents, then the property passes to a person's parents and then to any brothers and sisters and so forth to a person's next of kin. Therefore, if you were to die without a will in Georgia, your pet would be passed with your property. This is not a quick process and property is not officially passed until after probate proceedings have been initiated. At a minimum, you should have someone who will be timely notified and who will go to your home and immediately assume care for your pet.

What can I do to ensure that my pet is cared for?

The first, and most obvious answer is to speak to your loved ones. Hopefully, you have a family member who is familiar with your pet and who would be willing to assume care for your pet in the case of an emergency or death. While not legally binding, most of us would assume that a trusted family member or friend would honor our wishes and would be honored to care for our pet in the same manner that we would.

Second, you can make the arrangement for your pets "legal" by including your pet in your estate planning process.

Your will is a legal document that is executed with certain formalities and takes effect upon your death. Your will should include language to set forth persons responsible for administering and distributing your estate (the "Executor") and should include instructions for how your property should be distributed. If you have minor children, your will may also name a guardian for the care of your children. Because your pet is considered property, unless you make a specific provision in your will for you pet, your pet will be passed according to the provisions governing your tangible personal property. You should choose a person (caretaker) who is both willing and able to provide care for your pet. You should also consider how the caretaker would be compensated. Is this a person who is already inheriting a portion of your estate or is it necessary to gift an additional amount of money to ensure that the caretaker has the means to provide the level of care that you would want your pet to receive? Take note that the designated person must be willing and able to provide care for your pet. By gifting your pet to a person, you cannot control what that person does with or for your pet once they receive the pet. In most cases, the caretaker you choose will be a trusted family member with whom you have already discussed the care of your pet. If you need more security that your pet will be well cared for, you can consider making a condition the gift of funds that would require the caretaker to use the designated funds only for the care of the pet. This condition would likely not be legally enforceable but it would impose a moral obligation on the caretaker.

Another option to consider is the creation of a trust. A trust is relationship that you would create whereby one person would manage the property for the benefit of another person. Many states have adopted the Uniform Trust Act of 2000, which allows for persons to set up a trust for the continuing care of their pet. Unfortunately, Georgia is not one of these states.

What if I become incapacitated?

No person knows when an emergency might arise where we would be left in a mental or physical state where we are unable to make decisions or care for ourselves. To ensure that our assets and property are managed properly when you are ill or in an incapacitated state, you may execute a Durable Power of Attorney. In terms of planning for the care of your pet, the agent should be given authority and direction for dealing with your pet and expending your funds to make sure that your pet is cared for at the desired level of care. It is important that a Durable Power of Attorney not be worded too broadly or too narrow and therefore it is important to speak with an attorney who is able to ensure that your pet and your assets are protected.

Conclusion

Our pets play a significant role in our lives. For many pet owners, it is important to protect our pets and ensure that they are cared for after we are no longer able. There are various ways to ensure that your pet is cared for and this brief article is intended to assist you in thinking about the care of your pet. Remember, it is important to speak with an attorney during your estate planning process regarding your wishes for the care of your pet.