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Planning For Your Pet's Future Without You: Some Guidelines - Paula Morris
Copyright © 2003 World Chelonian Trust. All rights reserved.
Last year, I received an unusual e-mail from a friend in Hawaii. The time frame
was in the wake of the September 11 horrors and she was booked on a flight to
New Zealand in December and was quite worried. She asked me, in the event of her
death, to take her turtles and tortoises-all 58 of them. Now, I've been
collecting snippets of legal information for years on how to provide for my
shell-folk in the event of my death or incapacitation; I'd even written a rough
article with the intention of putting it into my now-defunct turtle newsletter.
But I never got around to finishing it and only added bits of information to the
file as I found them. So I told her that I'd take her animals only under certain
conditions, and, consulting my file, listed them for her. I received no further
e-mails and forgot about her post. Imagine my surprise when, several weeks
later, she writes to tell me that "It's all been taken care of, I've met your
conditions and the information is with my lawyer. Now I need some information
from you." I supplied the information and both of us are happy with the
arrangement. This episode was the impetus I needed to dig out the file and
assemble the information into an article, whose time seems to have come.
They're probably going to outlive us
We love our turtles and tortoises and provide them with food, shelter, veterinary care and love, but it isn't often that we think about providing for them in the event we become ill, incapacitated, or die. To guarantee that they'll continue to receive all this should something unexpected happen to you, you need to plan ahead. Using information from sources ranging from the Humane Society and ASPCA, to legal sources, to my own experience-here are some guidelines that should help you.
The Interim Period
An unexpected illness, accident, or death is a confusing time, and your turtles may get overlooked or go unattended for days, weeks or even months unless you take a few precautions.
Between the owner's death and the admission of the will to probate is a time often neglected in making provisions for one's animals. The start of probate can take between several weeks and several months to get rolling. Even though your will makes provisions for their care, no action can be taken by the executor until the will has been admitted to probate and the executor has received the authority to proceed by the issuance of "letters testamentary."
Therefore, a provision which should be included in all wills where animals are involved is one allowing the executor to use estate funds to care for the animal for the period before the animal goes to the new home(s) designated by the pet owner. The will should state that the costs of food, veterinary care, transportation and other expenses incurred by the executor in caring for your animals is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes. (See Sample 5 at the end of this article.)
So, with this stipulated in your will, your next task is to designate caretakers. They may also be those whom you name in your will to become the permanent new owners, but the distinction will have had to have been set forth formally in writing with your attorney. Find at least two responsible turtle friends or close relatives who will agree to serve as temporary emergency caregivers. Provide them with the keys to your home (or wherewithal to readily pick them up); detailed feeding and care instructions; the name of your veterinarian; and information about the provisions you have made for your animals. Make sure your neighbors/friends/relatives know how many pets you have and the names and contact numbers of the individuals who have agreed to serve as emergency caregivers. Emergency care-givers should also know how to contact each other. Carry a wallet card (preferably laminated and kept near your driver's license) that lists the names and phone numbers of your emergency turtle caregivers. (See Samples 1 and 5.)
Post removable "in case of emergency" notices on your doors or windows specifying how many and what types of pets you have. Periodically note the date so someone reading them knows they're current. Because many keepers are circumspect about the species they keep, these can be posted indoors, affixed to the inside of your front and back doors. Set up a file of index cards listing your animals, their veterinary history, a physical description or photo, distinguishing marks (a notch, missing limb, chipped scute), dietary needs, and a map of their location in your house or yard. This last is especially useful for people with a large herp collection. These cards can also contain additional information, like recipients for the turtle(s), which can be cross-referenced with stipulations in the will or trust you've created.
Many of us have turtles and tortoises on "permanent breeding loan" and it's possible that the keeper loaning them to you will want them back. Make sure these animals are properly identified and the owners notified in the event of your death to avoid any contesting of the will. Again, your executor should have a current copy of all applicable instructions for the interim period. Long-term or permanent care
The best way to make sure your wishes regarding your turtles and tortoises are
fulfilled is to make both formal interim and testamentary arrangements. It's not
enough that long ago your friend verbally promised to take in your animals, or
even that you're going to leave money to your friend for that purpose. Without
formal arrangements, especially, once you die or cannot control your
circumstances, a verbal arrangement with a friend may change due to that person
not having enough room, money, time-or even any interest anymore in helping you.
Work with an attorney to draw up a special trust or other document to provide for the care and ownership of your turtles, as well apportioning any money necessary for their care. You can designate one or more caregivers (See Sample 2). For those of us with varied herp collections, this list will be extensive and you must be specific. With your attorney's guidance, your will can be worded to cover any potential recipients. Leave enough money to the new "owner" to cover food, medicine and care for a given period (1 year to lifetime of the animal). Check that the bequest will not compromise the beneficiary's eligibility for welfare, Social Security, etc.
Select a caretaker you trust and who will be devoted to your animal(s). Leave only a reasonable amount of money for the care of any pet. A large lump sum may prompt greedy relatives to challenge the will and court may invalidate the bequest for pet care. Your attorney can, however, include an "in terrorem" clause in the will to reduce the chance of a challenge. This clause provides that if a person unsuccessfully challenges a provision in the will, he or she cannot then receive property under any provision of the will.
Another option is getting pet insurance, or leaving money directly to your vet through an arrangement that you both discuss early on called "Lifetime Care Agreement." The vet is then responsible for providing all medications, visits, diagnoses, injury care and euthanasia in exchange for a lump sum.
Can you leave your money directly to your turtles and tortoises?
Laws regarding disposition of animals varies from state to state, but generally animals are legally considered property and are therefore incapable of owning another property. If you leave money or property to your pet, it may end up in the hands of a "residual beneficiary," i.e., the person who gets everything not specifically left to anyone else. If there is no residual beneficiary, the money or property passes to each state's intestate law as if you had no will at all.
What about a trust that names your animalsas beneficiaries?
A trust leaves property to a beneficiary, which might be the ideal solution-at first. But more states are prohibiting this as the animal must be capable of owning and enforcing certain property rights, which, obviously, it cannot do. Some courts have declared that a pet trust is an "honorary trust," that it is valid but legally unenforceable. So you still end up at the mercy of another person who might or might not cooperate after you die or are incapacitated. Also, an honorary trust will, in most cases, has a term limit of 21 years, which means it was designed for warm-blooded animals, not chelonians that can live considerably longer.
In states where an honorary trust isn't permitted (like New York), a trust for human beneficiaries can include a provision that the trustees may use trust property to pay for the care of specific animals, even if such payments are not a deductible administration expense of the trust.
So what now?
Have an estate plan that includes your turtles and tortoises-a will, a revocable living trust, or other legal device that you discuss with your lawyer. Identify your first and alternate choice for owners. If you can not find anyone who is willing, contact an organization that, in exchange for a financial contribution, takes on your animal(s).
There are non-profit organizations whose function is to care for or place turtles. The group you choose should agree to care for the animal for its life by placing it in a captive breeding group or adopting it out to a private individual who's been vetted by that organization. Before choosing an organization, research it and make sure that your animal(s) will not be spending the rest of their lives in a glass tank; you should be able to ask for and receive a detailed description of the adoption procedure and the conditions it sets forth to people who adopt from it. Once you've chosen an organization, establish its willingness to work with you, and iron out in advance who will handle any financial obligations like vet care or shipping. (See Sample 3.)
As some species of turtles and tortoises become rarer, you should give serious thought to sending your individual or groups to a permanent conservation facility where they will be more than privately-owned pets and can help the captive propagation effort. They will be placed in what is called "assurance colonies." It's possible that one of these organizations will forward your animals to an appropriate breeding colony managed by a private individual affiliated with that organization, so you need to discuss this possibility before you make arrangements with them if that's going to be a problem for you.
Making a Conditional Bequest
Some states allow a pet owner to make a "conditional bequest" in which both the animal and a sum of money are left to a beneficiary who must use the money for the care of the animal.
The main advantage of a conditional bequest is that it requires the recipient to care for the turtle(s). But it falls to you to choose an executor who will oversee that the recipient honors his or her commitment to your animals, and your executor may not want this additional responsibility.
If you want a conditional bequest, your attorney must consider the relevant law concerning such provisions, since they can be invalidated by the courts. It's not the best choice when providing for your turtle's future, but certainly an option for you to explore with your attorney.
A Final Word
I hope I've given you some practical guidelines. They are not hard and fast legal advice because I'm not a lawyer, just a keeper who wants to point out a few things you're going to have to think about. Also, the laws regarding inheritance vary widely from state to state, not to mention country to country. To have done for your animals what you wish after your death or incapacitation, you MUST get the advice of qualified attorney specializing in trust and estate matters.
Here are some will provisions that appeared in a booklet prepared by The Association of the Bar of the City of New York, Committee on Legal Issues Pertaining to Animals. They're all going to need extensive modification to fit your particular needs, but will give you and your attorney some ideas.
Sample Will Provision 1
I give my turtle [Fuzzy], and any other animals which I may own at the time of my death, the [Mary Smith], presently residing at [address], with the request that she treat them as companion animals. If she is unable to unwilling to accept my animals, I give such animals to [John Doe], presently residing at [address] with the request that he treat them as companion animals. If is is unable or unwilling to accept my animals, my Executor shall select an appropriate person to accept the animals and treat them as companion animals, and I give my animals to such person.
I direct my Executor to give [$___] from my estate to the person who accepts my animals, and I request (but do not direct) that these funds be used for the care of my animals.
Sample Will Provision 2
My Executor shall give [my turtles/tortoises] to one or more of the following persons who agree to care for such [turtles/tortoises] and to treat them as companion animals:
[Mary Smith], presently residing at [address].
[John Doe], presently residing at [address].
[James Smith], presently residing at [address].
My Executor shall have the discretion to select one or more of the persons named above to receive one or more of the [turtles/tortoises]. If none of such persons are willing or able to take the [turtles/tortoises], my Executor shall have the discretion to give the [turtles/tortoises] to another person or person who agree to care for such [turtles/tortoises] and to treat them as companion animals.
My Executor shall give [$___] to each person selected by my Executor and who accepts one or more of my [turtles/tortoises].
Sample Will Provision 3
I give all of my [turtles/tortoises] to the [Conservation Organization] with the following requests/stipulations (modify/add as necessary):
that the [Conservation Organization] take possession of and care for all my animals search for good homes for them;
that until homes are found for my animals, the animals be placed in foster homes rather than in cages at [facility];
that if it is necessary to keep some of the animals in cages while making arrangements to find permanent homes, in no event should any animal stay more than a total of [1-xx weeks] in a tank/indoors without sun or equivalent UVA/UVB provision;
that each animal should receive appropriate veterinary care, as needed;
that after attempts have been made for [X months], my [designee, Executor], presently at [address], be contacted if it is not possible to place an animal so that s/he can assist with finding a good home for the animal;
that the [Conservation Organization] make every effort to assure that none of my animals is ever used for medical research or product testing or painful experimentation under any circumstances;
that, after placement, organization personnel make follow-up visits to assure that my animals are receiving proper care in their new homes.
If the [Conservation Organization] is in existence at the time of my death and
is able to accept my animals, I give [$___] (optional) to the [Conservation
Organization]. If the [Conservation Organization] is unable to accept my
animals, I give my animals and [$___] to one or more similar Conservation
Organizations as my Executor shall select, subject to the requests made above.
Sample Will Provision 4
I direct my Executor to pay, as an administration expense, all expenses associated with the feeding and care, including veterinary costs, of my [turtles/tortoises] until the animals are placed with the persons that I (or my Executor) have selected to care for the [turtles/tortoises] for the duration of their lives, whether or not these expenses are deductible for estate tax purposes.
Sample Note 5 (to carry in your wallet regarding emergency care of pets)
(side 1) In any situation in which I am unable to return home to feed my pets,
such as my hospitalization or death, please immediately call [Mary Smith] at
[address and phone/e-mail] or [John Doe] at [address and phone/e-mail] to
arrange for the feeding of my [turtles/tortoises] located at my home at
[address]. The superintendent of my apartment building [name, address, and
phone], my Executor [name, address and phone], and my neighbor/caregiver(s) have
a copy of this document.
EMERGENCY CARE OF MY PETS
Executor/attorney Phone number
My home address
My phone number
My signature Date
Copyright © 2003 World Chelonian Trust. All rights reserved.
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