THE BLOG
06/24/2013 01:29 pm ET Updated Aug 24, 2013

Consider Your Pets in Your Will

Last weekend my husband Roman called "dibs" on our Saturday date night. I should have known when he said he wanted to "pin me down" that something was afoot, but I had high hopes. "When is the sitter arriving?" I queried, excited for the night to begin.

"No sitter," he stated with a smile, "but I did get a movie for the kids." While he set them up in the family room I grabbed two wine glasses and a bottle of chardonnay, and curled up on the couch, eagerly awaiting my gallant knight to appear. He arrived, clasping a file in place of a sword,

"It's time to review our will!" He said enthusiastically, attempting to make this activity sound as thrilling as a concert on the beach.

My excitement plummeted. "Our what?" I glared venomously.

Roman, never one to be ruffled, said, "Our will, as in last will and testament. We have to review it, and this way it'll be relaxing and fun."

"Preparing for our hypothetical demise could never be fun," I announced, making no effort to hide my aggravation. Mentally, however, I acknowledged that he had hit upon one of the great hallmarks of parenthood. And, by association, of pethood too.

As it turned out, we had much to learn. If time could be measured in pets vs. years, we were seven pets behind. It had been seven pets, eight years, one child, three additional book titles and two homes since we'd last updated our wills.

When considering children, there is a question of how much and to whom the assets will go. Children under 18 need both a guardian and a trustee to oversee their well-being. For us, our kids were the easy part. We split our fortunes 50/50, tapping an uncle and a godmother to lord over them until their wings had grown sturdy enough to fly.

But what about our voiceless companions? In 2005 we had one dog and a cat, both so beloved in our old neighborhood that each had his own fan club.

Today we share our home with a bevy of furred and scaled companions. Who would step in to shepherd our four dogs, two cats, the lizard, and the rabbit -- not to mention our beloved red-eyed carnival goldfish named Rudolph -- should my husband and I beat them to the pearly gates? Though we always joke that our pets are children too, we suddenly wondered how they would be perceived in the eyes of the law. Can their care be apportioned like a human child's, assigning them to responsible family members or friends?

Well, yes and no. A few days spent fact checking and speaking with legal council and legacy advocates at the ASPCA proved quite the education. Forty-six states as well as the District of Columbia respect pets as living property and respect an allowance of assets if it is prepared in the form of a pet trust. The states that have no such provision include Kentucky, Louisiana, Minnesota, and Mississippi -- though they respect beneficiaries who are named in the final legal documents.

A pet trust. This was a new term for me. Leslie Levin, Esq., an estate and trust attorney from Cuddy and Feder, LLP in White Plains, N.Y. explains that in one's last will and testament, a pet owner would create a "separate article to govern the pet trust, naming a trustee to portion out the funds necessary to provide for their pets' well being. Pet owners can outline their wishes regarding how the income and principal is to be used to care for each individual pet, or suggest the trust be restrictive and only provide money for the pet's medical care."

Ms. Levine reveals that most people provide for a broader range of issues and allow the trustee to use the money for any reason for the nurturing and care of pets. After assigning a trustee or trustees to look after your pet/s, you can outline instructions within the will or inscribe a personal note to detail each pet's preferences, e.g., what food, bones, and toys your pet enjoys, as well as an outline for their medical care. It is here, within this personalized letter, that you can express your hopes for your pet's rehoming, should it be someone other than the trustee.

A quick email to my friend, fellow author and legal estate planner Barry Seltzer, LLB provided even more insights. Barry co-authored the book Fat Cats and Lucky Dogs with professor of law Gerry W. Beyer. First, I asked him for a quick definition of a pet trust.

"A pet trust is legal plan that a pet owner may use to be sure her pet has proper care after her death or in the event of her becoming disabled. A pet owner can choose to make a pet trust either while she is still alive, called an intervivos or living trust, or create a trust that comes into effect when she dies by including the trust provisions in her will, which is called a testamentary trust."

Hmmm... "Which one is better? A living trust or a testamentary trust?"

As a will is not retroactive until a court has validated it, the living will is a better choice by far as it goes into effect the moment one is incapacitated, or instantly upon death. The testamentary trust can be indefinitely postponed if there is any objection to the probate of a will.

The next question might then become how do you determine how much to leave them. It's a fair question that can be estimated with routine mathematics.

• First reference the Internet for the average lifespan of your dog's breed -- or hypothesized mix of breeds.

• Project how many months remain in your dog's life according to this calculation.

• Estimate monthly cost for feeding and extras, such as bones, bedding, and toys.

• Next, consider your pet's medical care. Speak to their veterinarian. Outline yearly expenses and project elder care as well as any unforeseen expenses that are breed specific or could crop up in later years, such as dental and eye care.

• Finally, set aside a rainy day fund for emergencies or occasional boarding.

In planning for our own pets, tears started to collect at the corners of my eyes. Roman plopped the iPad in front of me and promised, "If we win the lotto, we could pull an Oprah," knowing he had referenced one of my lifelong idols. Oprah, as well as other notables, had not only earmarked millions for their pets' well-being in their will, but many had created legacies in their pet's name, gifting money to their favorite charities upon their death.

Wiping away my tears, I smiled, as my curiosity was again peaked. What was a legacy and how does one plan for that?

he following day I rang my friends over at the ASPCA and spoke with Kim Bressant-Kibwe, in charge of the ASPCA Counsel, Trusts & Estates, and Planned Giving -- a great resource especially for those pet lovers who may not be able to afford professional legal council. Through Ms. Bresant-Kibwe, I learned even more. Kindly, she sent me a collection of action points that I share here with you.

1) Carry a pet alert card in your wallet (to inform ICE personnel that you have pets at home).

2) Place a notification sticker on windows and/or doors to alert emergency personnel of the number and type of pets you have in your home. Indicated if any might be reactive, timid (and thus hiding), or aggressive towards strangers.

3) Create a pet dossier -- a person who will be made aware of their role should you pass and who is aware of our pets' dietary needs, medical, vet info, habits, personality traits, etc.

4) Identify at least two or three potential caregivers who can provide permanent and/or foster (temporary) care.

5) Identify an organization of last resort, a shelter or humane organization with whom you meet with ahead of time. Provide this establishment with detailed information about your pet, and entrust a legacy to aid in the cost of comforting, caring and rehoming your companion/s.

Her last suggestion that a rescue organization be named to care and place your pet should others beneficiaries fall through is an excellent point. Our friend, named as our pets' beneficiary in the last version of our will, has since moved out of the area.

While it's reassuring to note that the chances of my husband and I dying simultaneously is lower than one-half of 1 percent, processing, our options and dictating our hopes for our family's care is of paramount importance. While it pains me to consider splintering our boisterous brood, keeping all seven of them housed under one roof isn't really an option either. Like kids, pets can adapt and find happiness if provided a framework of kindness, consideration, and love. What more could we ask?

Three nights later, back on the couch clutching wine glasses, Roman closed the file on our now current and updated testament. This left us just a few minutes to ponder life as we hoped to live it, before the kids climbed up and over us like spry young monkeys. Welcoming the dogs who followed in their wake, my husband looked to me and smiled, "It's a good life."

Brushing my son's untied shoelaces off my forehead, I gathered up our smallest dog, Bamboozle, smiled back at him and agreed, "It's a very good life, indeed."

For more by Sarah Hodgson, click here.

For more on pet health, click here.

Subscribe to the Lifestyle email.
Life hacks and juicy stories to get you through the week.