Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By James W. Mallonee
The holiday season has passed and with that comes the adoption of many animals from the local pet rescue centers. Once the pet comes home, it will have many years of life with its new owner. However, someday the pet owner may die and when that occurs, the adopted animal needs to be taken care of. This is where careful long-term planning is essential concerning the health, maintenance, shelter and feeding of the newly orphaned animal. However, careful planning prior to one’s death can reduce this concern
The simple solution is to find someone who is willing to step-in and take the animal in as a member of their home just as the decedent had previously provided. In almost all situations, a pet quickly becomes one of the family. Under common law, a pet is considered personal property of the owner in the same manner as furniture, automobiles or tools. Unlike furniture, the pet is a living thing requiring feeding, maintenance and shelter to protect it during its remaining life. The question becomes how can a pet be cared for and who is going to pay for its feeding and maintenance once its owner is deceased or incapacitated.
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 act 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 charged with specific duties to manage that property. Thus, a trustee can be given the power and authority to protect an owner’s pet following their death or incapacity.
This author often gets questions about whether a 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 a decedent by marshalling their assets, paying debts and distributing the decedent’s assets following death. A personal representative is generally not charged with the specific duty to manage the care and feeding of a pet for its remaining life. To manage the care and feeding of a decedent’s pet for life, a trustee is the best solution.
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 either Testamentary Trust or general trust instrument.
A Testamentary Trust is one that is created within a Will and comes into existence following the death of the Testator. Generally, the Trustee of a Testamentary Trust will receive 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; but, only after the Testator’s death. The Trustee will take possession of funds and be directed to use such funds for the pet’s shelter and care during it’s remaining life. Those duties can be split between a trustee of the funds and a caretaker who will provide the services necessary to care for the decedent’s pet.
What happens if you become incapacitated during life? A Testamentary Trust may not be your best alternative in the event of incapacity. Should this happen, another means of making certain that your pet is cared for is to prepare a Trust instrument. A Trust can be used to make certain that your pet is cared for in the event you are unable to manage your pet due to incapacity caused by dementia, stroke or other life altering events. In such instances, your successor Trustee can take control of your pet and utilize the assets titled in the name of your Trust for the use and care of your pet.
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 it in the same manner as you. 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 or incapacity, contact 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 or incapacity. By planning ahead, you can avoid later issues and moments of anxiety for you and your pet.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
James W. Mallonee, P.A.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
(941) 206-2223
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285
(941) 207-2223
