DEARLY BELOVED, WE ARE GATHERED HERE TODAY . . .

Attorney, Roanoke, VA

This may seem a strange title for an article about providing for the care of your birds after your death, or in the event of your disability.  I couldn't think of anything more descriptive that isn't boring.   Also, it is an appropriate time to honor Prince (who, incidentally, died without a will).

Many of our pet birds have lifespans longer than ours.  It is our moral responsibility to provide for their lifelong care.  But if we want to be sure that they are taken care of when we are no longer able to do it (whether that is because we become disabled or die), we need to take certain steps to accomplish that.

The worst option is to do nothing.  Birds, and all other animals, are considered personal property under the law; and in the event of your death or disability, they will be treated the same as your furniture, motor vehicles and other personal property.  (All property that is not "real," meaning real estate/land, is personal property.)  They will become the property of whoever inherits your personal property under state law: usually a spouse, children, parents, siblings or other relatives.  The birds will not be anybody's responsibility and there will no legal obligation upon anybody to keep or care for them.

You could extract a promise from a relative or friend to care for your birds if you die, but the promise would not be binding.  The person who you believe will take care of your birds after your death is perfectly free to ignore the promise.

If you have made a will, but haven't specifically mentioned your pets, they will be treated as your personal property under your will, and they will become the property of whoever you list as the beneficiary of personal property.  There will be no limitations on what the beneficiary may do with the birds and no obligation to keep them or take care of them.  The beneficiary may take them to a shelter, give them to anybody he wishes to give them to, or simply open the door and let them out.  Even if you have obtained a verbal promise from someone to take care of the birds if you die, that promise is not binding.

Another option is to state, specifically, in your will who is to inherit the birds.  You may bequeath to that person (or organization) money to care for the birds.  DO NOT LEAVE MONEY TO YOUR BIRDS.  Remember that animals are personal property; and personal property may not own or inherit other personal property.

The best option to ensure that your birds are cared for in the event you cannot do it, is to create a trust.  There are two basic kinds of trust: a living trust which takes effect immediately, and a testamentary trust which takes effect at the time of your death or later.

A trust must be funded (have money to carry out the trustor's wishes).  A living trust must be funded at the time it is created, although you can add money and/or property to it later.  You don't need any money to fund a testamentary trust until you die; you may leave money in your will to fund it, or fund it with a life insurance policy or retirement plan. 

A disadvantage of the living trust is that there are costs associated with setting it up and maintaining it; and it must be at least partially funded when you create it.  It is also more difficult to modify a living trust, whereas a testamentary trust may be created by adding a few extra sentences to your will, and modified by executing a codicil to your will.

Regardless of whether you opt for providing for your companion, after you die, by will, living trust, or testamentary trust, there are certain requirements you must consider.  Foremost is that you discuss the matter with the person you intend to be caring for your pet after your death or in the event of your disability.  The new presumed caretaker may not appreciate, or be willing to accept, the responsibility of caring for a long-lived, messy, demanding animal.  That person may not be able to have a bird where he or she lives, or know how to care for one, or have the funds to care for one.  Discuss thoroughly with the caretaker what is required to properly care for a parrot and what will happen in the event the new caretaker dies or becomes unable to care for the bird any longer.  Talk about where the money will come from for the bird's expenses (food, housing, medical costs, etc.).  You can, and probably should, provide in your will or trust, money with which to cover your pet's care.

You should consult an estate planning lawyer who is familiar with wills and trusts for the benefit of pets.  There are persnickety legal requirements for such a document to be enforceable, that lawyers (even some estate planning lawyers) may not be familiar with.  For example, there is a pesky law that most lawyers haven't come into contact with since law school which, if not considered, could invalidate provisions in your will or trust.  It is called the "rule against perpetuities," and it's purpose, in part, is to keep trusts from going on forever.  There is a limit on how long a trust may last which creates a problem if the pet you are providing for is long-lived such as a parrot.

This is, of necessity, a brief overview of things to think about if you want to provide for your parrot when you can no longer do so.  You need to consider:

  • Who you would trust to take care of your companion?
  • Is that person willing and able to do it?
  • Where will the money come from?
  • What happens if that person becomes disabled or dies?

I believe Gerry W. Beyer to be the foremost expert on providing for pets after their humans die (among other areas of expertise).  He is a professor, lawyer, lecturer and author.   You will find numerous articles on-line by him about this subject.  Just search for "Gerry W. Beyer."