Updated: Mar 23
Virginia Kilmer, Perpetual Care
Did you know that even if you do not have a documented will or trust, you do have an estate plan? You may be asking, “How?”
The answer is every state has a “default estate plan” for those without their own. This is what your default estate plan looks like:
Default Estate Plan
Each state in the United States has an “Intestate Succession Plan” for those residents that die without having signed their own will or trust.
· In many states, if you die without an estate plan, the law provides that your entire estate will be distributed to your spouse if he or she is alive unless you have children from a prior marriage. If you do not have a surviving spouse, the estate will be distributed to your children and if a child predeceases you, then to that child’s children.
· If you have no surviving children or grandchildren (commonly called your “issue”), then your estate will be distributed to other relatives.
· If you have a surviving spouse and children from a prior marriage, a certain amount is distributed to your surviving spouse and then one-half of the balance of your estate will be distributed to your surviving spouse and one-half to your children.
Although the state “default estate plan” attempts to represent what most people would want to do with their estate if they had done their own estate planning, it may not be what you want. There are many concerns about relying on the state’s “default estate plan.”
Often, it may be desirable to allow the surviving spouse to have a lifetime interest in all or a part of your estate until his or her death and at that time the estate could be distributed to your children. This is commonly done through the use of a revocable or living trust that holds a personal residence in trust for the surviving spouse and then upon their death to the children or grandchildren of the first spouse.
Additionally, if you marry later in life, you may desire that all your assets be distributed to your children from a prior marriage because your surviving spouse has sufficient assets of his or her own. This must be accomplished through your own will or trust.
Pets in a Default Estate Plan
Are your pets included in the “default estate plan”? Well yes, although not specifically. Pets by law are considered property, the same as a car, furniture, household items. If property is not designated, it follows the rules indicated above.
· If the spouse is still living, pets will go to the spouse.
· If the spouse has predeceased, the pets go to the children.
· If the spouse or children do not want them or can’t care for them, they are able to dispose of them as they choose, which generally means the go to the local animal shelter unless another family member steps forward.
· If there is no family member remaining, the court (a judge) determines the fate of pets and they will likely go to a municipal animal shelter.
It is very common for us to speak with people and find that they assume that their family (usually spouse or children) will take their pets so there is nothing documented in their estate plan for their pets. And yet every day family members are turning pets into shelters or taking them to rescues because a family member has gone to a nursing care facility or passed away. Do you want to leave your pet’s fate up to other people who may not know them or love them like you do or simply do not have the ability to bring them into their household?
If you want to be sure that all of your wishes are carried out, it is important to have your own will or trust to avoid letting the state determine what happens with your family and your property. It is certainly worth it for your pet’s wellbeing and it is worth the time and the cost (which can be very inexpensive) for your peace of mind .
Even if you believe that you have virtually no assets to leave to someone, but you do have a pet, I encourage you to have a pet life care agreement in place for your pet. The Pet Life Care Agreement is a simple agreement that designates a primary and secondary caregiver for your pets if at any time you are no longer able to care for them. For a FREE Pet Life Care Agreement Template, visit our website at www.perpetualcare.org/estate-planning.