The Heirs and the Dog that bit ‘em

We’ve all heard about the $12 million dollar Trust fund established by wealthy heiress, Leona Helmsley, for her pet Maltese, ‘Trouble’ (who lived up to his name when he a housekeeper).

Helmsley, a billionaire, left the bulk of her estate to a Charitble Trust and just $5 million each to all but 2 of her grandkids who she disinherited. Needless to say, the family has initiated a lawsuit to challenge the pup’s trust fund.

As the media focuses on the feud between the heirs and the dog that bit them, the bill for court costs, attorney and probate fees and the expenses of administering the Trust continue to pile up. Ultimately, the legal price tag may exceed $60 million dollars!

It looks like Helmsley really screwed the pooch this time!

Many LGBTQ people love our pets as though they are our children. If you have pets and are concerned about what will happen to them if you get sick or die, we have outlined a few things you might want to consider as you make your estate plan.

The following 3 step plan will ensure that your pets will be cared for in any event:

1. Make provisions in your Will and/or Trust to provide effectively for the comfort and care of your pet(s).

2. If you are making a Will but not a Trust, make arrangements, in advance, to protect your pets during the interim period between your death and the admission of your Will to probate. Too often this period is not considered. Although a Will can make provisions for the care of the pet, unless you have a Living Trust, no action can be taken by the Personal Representative to carry out these provisions until the Will has been admitted to probate and the Personal Representative has received the authority to proceed by the issuance of letters testamentary. The time between death and the authority of the Personal Representative to act can vary between several weeks and several months. Plans must be made to ensure care for your pets during this interim period.

3. Make advance arrangements to ensure your pets will be cared for in the event of an extended illness hospital stay.

Designating Caretakers

You should find a friend or relative willing to care for your animals in the event you’re your partner dies before you (or if you do not have a partner). The matter should be discussed in advance with the potential caretaker to make sure the animal will be cared for appropriately. The person who will receive an animal as the result of a bequest in a Will or Trust should understand that he or she becomes the animal's owner and, as such, has all the rights and responsibilities of ownership.

You should add the appropriate language in his/her Will or Trust to ensures the animal will be left with the caretaker you have selected. It is best to name alternate caretakers in the Will or Trust in case the first-named person is unable or unwilling to take the animal when the time comes.

Example:

“I give my [cat, Ginger], and any other animals which I may own at the time of my death, to [Mary Smith], presently residing at[address], with the request that she treat them as companion animals. If she is unable or 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 he is unable or unwilling to accept my animals, my Personal Representative/Successor Trustee 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 Personal Representative/Successor Trustee 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.”

Another alternative is to give the Personal Representative/Successor Trustee the discretion to select from among several caretakers prearranged and named in your Will or Trust.

Example:

“My Personal Representative/Successor Trustee shall give [my dogs] to one or more of the following persons who agree to care for such [dogs] 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 Personal Representative/Successor Trustee shall have the discretion to select one or more of the persons named above to receive one or more of the [dogs]. If none of such persons are willing or able to take the [dogs], my Personal Representative/Successor Trustee shall have the discretion to give the [days] to another person or persons who agrees to care for such [dogs] and to treat them as companion animals.

My Personal Representative/Successor Trustee shall give [$ ] to each person selected by my Personal Representative/Successor Trustee and who accepts one or more of my [dogs].”

Providing Funds for Pet Care

Under the laws of all 50 states, a you cannot leave any part of your estate outright to an animal. However, you may leave a sum of money to the person designated to care for the pet, along with a request (not a direction) that the money be used for the pet's care. It is important for you to select a caretaker you trust and who will be devoted to your pets, because the caretaker has no legal obligation under the above provision to use the money for the purpose specified.

You should leave only a reasonable amount of money for the care of any pet. A large sum of money may prompt relatives to challenge the Will or Trust and the court may invalidate the bequest for pet care. You may want to include an "in terrorem" clause in your Will or Trust to reduce the chance of a challenge to the Will or Trust. This clause provides that if a person unsuccessfully challenges a provision in the Will or Trust, he or she cannot then receive property under any provision of the Will or Trust.

Designating a Shelter or Charitable Organization to Care for Pets

If no friend or relative can be found to take the pet, the you should look for a charitable organization whose function is to care for or place companion animals. A humane society or shelter might agree to accept the animal along with a cash bequest to cover expenses.

The charity should agree to take care of the animal for its life or find an adoptive home for the animal. Before selecting a shelter, find out what kind of care animal receive at the shelter (for example, an animal should not have to stay for more than a short period in a cage). If the organization is directed to find an adoptive home for the companion animal in its care, you should obtain detailed information about the adoption procedure.

Example:

“Give all of my [dogs' cats, and other animals] to the [Humane Shelter], presently located at [address], with the following requests:

…that the [Humane Shelter] take possession of and care for all my animals and 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 the shelter;

…that if it is necessary to keep some of the animals in cages while making arrangements to fend permanent homes, in no event should any animal stay more than a total of 2 weeks in a cage;

…that each animal should receive appropriate veterinary care, as needed;

…that after attempts have been made for 3months to place an animal, my [son], presently residing at [address], be contacted if it is not possible to place an animal so that he can assist with finding a home for the animal;

…that the shelter make every effort to assure that none of my animals are ever used for medical research or product testing or painful experimentation under any circumstances;

…that, after placement, shelter personnel make follow-up visits to assure that my animals are receiving proper care in their new homes.

If the [Humane Shelter] is in existence at the time of my death and is able to accept my animals, I give [$_ to the Humane Shelter]If the [Humane Shelter] is unable to accept my animals, I give my animals and [$ / to one or more similar charitable organizations as my Personal Representative/Successor Trustee shall select, subject to the requests made above.”

Making a Conditional Bequest

New York and some other states allow the you 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.

A conditional bequest has the advantage of requiring the recipient to care for the pet but adds to the Personal Representative/Successor Trustee's responsibility the task of ensuring that the person receiving the money fulfills his or her commitment. Therefore, you must select a Personal Representative/Successor Trustee willing to undertake this added responsibility. If you want a conditional bequest, the relevant law in your state must be taken into consideration when drafting this language to ensure the provision for pet care in not later invalidated by the courts.

Establishing a Trust for Animals

Under the law of most states, an animal cannot be made the beneficiary of a trust. In a few states, persons can create trusts for animals, but such trusts are honorary, i.e. unenforceable in the courts, and effective only if the trustee chooses to abide by the terms of the trust instrument. However, a small but growing number of states, including New York, have enacted statutes so that trusts for animals can be created and can be enforced in the courts. Trusts in these states are not honorary even though they may be referred to as such.

In all states where a trust for animals can be created, the trust cannot exceed 21 years, even if the life span of a particular animal is longer. The trustee appointed in the trust will be directed to the trust instrument to use the funds in the trust to care for the animals. If the trustee cannot take physical possession of the animals, a separate person should be named as the caretaker.

In the states where trusts for animals are not permitted, a trust for human beneficiaries can include a provision that the trustee may use trust property to pay for the care of animals, as payment for such care benefits the human beneficiaries.

Providing for Euthanasia if Caretakers Cannot be Found

Provisions in a Will or Trust directing that an animal be euthanized upon the death of its owner have been invalidated by the courts. While you may feel it is important to protect your pet from subsequent mistreatment or a "bad home," it is questionable whether a healthy pet's life must end by euthanasia when its owner dies. Nevertheless, if a you wish to provide for euthanasia, it is preferable to specify in a Will or Trust that the pet be cared for by the Personal Representative/Successor Trustee or a friend for a period of time and ask that this person attempt to find a good home for the pet, and if no home is found after a specified reasonable period of time, that the animal may betaken for euthanasia. A court may be less likely to overturn such a provision.

An alternative is to write a letter to a friend or relative stating that upon your death, the animal should be euthanized. (A signed copy should be given in advance to the friend or relative and another signed copy should be held with the Will or Trust but not made part of the Will or Trust). The letter is not legally binding and the friend or relative is not obligated to carry out your instructions.

Euthanasia performed pursuant to a letter from you is also subject to court challenge.

It is preferable that permission of those relatives or other persons or charities who take the balance of the estate the residuary beneficiaries-be obtained before any animals are euthanized, as the residuary beneficiaries could complain that the animal is part of the estate property and should pass to them. This is unlikely, but it has happened.

It should be noted that if you bequeath your animal to a friend or relative, that person becomes the owner and has all the rights and obligations of the pet's care, including the right to euthanize the animal.

Example:

“My [cat, Ginger], shall be delivered to[Mary Smith or John Doe] for temporary holding. The Personal Representative/Successor Trustee shall determine the amount from the estate to go with the animal for such temporary care and feeding. The Personal Representative/Successor Trustee shall advertise and otherwise make diligent efforts to find a good home for the animal, taking a reasonable amount of money for these purposes from the estate. If no home can be found after [ ] months, the animal shall be taken to [name and address of veterinarian] to be euthanized by the most humane method the veterinarian has competency to use.”

Providing Funds for Pet Care During Transitional Period

Finally, a provision which should be included in all Wills or Trusts where an animal is involved, is one allowing the Personal Representative/Successor Trustee to use estate funds to care for the animal for the period before the animal goes to the new home designated by the you. The Will or Trust should state that the costs of food, veterinary care, transportation and other expenses incurred by the Personal Representative/Successor Trustee in caring for your pet is to be paid from the estate as an estate administration expense, whether or not the expenses are deductible for estate tax purposes.

If you are using a Will only, short-term arrangements for care of a pet are necessary to cover the period between your death and the issuance of letters testamentary or letters of administration. These letters give the Personal Representative or Administrator authority to act, but depending on the jurisdiction, it may take from two weeks to two months to obtain them. Short-term arrangements are also necessary if the owner is hospitalized for a period of time.

Example:

“I direct my Personal Representative/Successor Trustee to pay, as an administration expense' all expenses associated with the feeding and care, including veterinary costs, of my [dogs and cats] until the animals are placed with the persons that I (or my Personal Representative/Successor Trustee) have selected to care for the [dogs and cats] for the duration of their lives, whether or not these expenses are deductible for estate tax purposes.”

Arranging for Friends/Relatives to Provide Short-Term Care

You should try to find a friend or relative who is willing to take care of your pets during these periods. You should leave word, preferably in writing, at home and with a neighbor, or with the building management and/or superintendent for the friend or relative to be notified. You should arrange for access to your home to permit the care and feeding of your pets during such short -term periods. If an apartment is involved, you should consider leaving a key with the superintendent or a neighbor. If there is a relative or friend in the area, you should consider providing that individual with a key and with written permission to the building management to enter the apartment in the event of your death or hospitalization.

Arranging for a Shelter or Charitable Organization to Provide Short-Term Care

There may be an animal shelter or charitable organization with which you can make arrangements – in advance -- to care for your pet in the event of your death or hospitalization. Should you make such arrangements, shelter personnel would need written instructions addressed to the superintendent or building management and the key to permit them access. Similarly, you should leave written instructions in your home and with a relative or friend to notify the shelter (if a shelter is chosen) or the individual who has agreed to take care of the pet during this period.

Emergency Instructions

Once you have decided upon such arrangements for the short-term care and feeding of the pet in the event of the pet owner's hospitalization or death, you should carry a copy of the instructions as part of your identification papers in the event of sudden hospitalization or death due to an accident or illness.

Sample Note to Carry in Wallet Regarding Emergency Care of Pets:

“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] or [John Doe] at [address and phone], to arrange for the feeding of my [cats] located in my home at [address]. The superintendent of my apartment building [name, address and phone], my Personal Representative/Successor Trustee [name, address and phone], and my neighbor [name, address and phone] have a copy of this document.”

Providing Copies of Instructions to An Personal Representative/Successor Trustee

Finally, in the event of death, and to cover the interim period while letter testamentary are being obtained, the Personal Representative/Successor Trustee named in your Will or Trust should also be given copies of all applicable instructions.

Finally, the best way to assure proper care for your pet is to make long-term (final) and short-term arrangements for your pets now – either through your Will and/or Trust or in letters of instructions and other arrangements as discussed above.

Making these arrangements may entail a significant amount of effort on your part, but is important so that your animal is cared for in the event of your hospitalization, incapacity or death.

ARE YOU A G.A.Y. DUCK?

In this instance, G.A.Y. Ducks is short for the phrase “get all your ducks in a row” which customarily refers to the act of getting your life and/or affairs in order.

Coincidentally, the word GAY is an anachronism for “Get” “All” and “Your,” and thus the expression “Get All Your Ducks in a Row” has become a Rainbow Law catchphrase.

In a manner of speaking, therefore, those LGBTQ folks who have created legal documents that protect their rights and the rights of their partners and/or children are GAY Ducks!

And so we ask… are YOU a GAY Duck?

If you are not a GAY Duck, perhaps it is because:

• You’re not sure you need to create legal documents;
• You don’t understand the whole concept;
• The subject matter is confusing and/or intimidating;
• You do not know where to begin;
• You believe Estate Planning is only for the very wealthy;
• You feel intimidated by legalese;
• You don’t want to think about death and dying;
• You do not have a partner.

This post is the first in a series of easy-to-understand articles -- written in plain English -- that will put to rest the concerns that we’ve outlined above.

Naturally, no one wants to think about illness, death and dying – especially when it comes to our own lives and those of our loved ones.

But because we are unwilling to think about the hard stuff, an alarming number of gays and lesbians have put off getting their legal ducks in a row.

Statistics show that 7 out of 10 Americans – in general -- do not have a Last Will. We believe the number is much higher in the LGBTQ community.

This is especially alarming given that – unlike heterosexual married spouses -- committed gay and lesbian partners have NO built-in legal protections. Sadly, as a result of this disparity, many will lose property, children, hospital visitation and the right to make medical and financial decisions as well as rights to arrange for burial, cremation and organ donation for our partners.

And all of that pain and suffering could easily be avoided by writing down our wishes in advance!

In short, PLANNING for the inevitable is not about death and dying. It is about life and love.

I. Estate Planning 101

Today’s article will focus on “Estate Planning,” which is just a high falutin’ way of describing a written plan to make sure, after you die, your assets (the stuff you own) passes in an orderly and efficient manner to the person, persons or organizations you name. Estate Planning documents include (but are not limited to) Wills, Trusts, and Powers of Attorney.

I guess we really need to start at the beginning by dissecting the phrase ‘Estate Planning’ which is pompous sounding in and of itself…

A. What is an Estate?

The very word ‘Estate’ conjures up images of mansions and limos. If that is so, why would little ole you -- driving around in your Subaru and owning or renting a modest home – ever need to think about let alone plan for something you don’t even have?

Well, if you own anything at all – whether it be real estate a bank account, a mutual fund, stocks, bonds, a car, jewelry, furniture – or even if you only own the toaster-oven you received as your "coming out" gift -- then you – in fact – have an ESTATE!

Another way of looking at it is this:

While you are living, if you want to get rid of all or some of your stuff, you simply sell it at a yard, garage or moving sale. Once you are dead, someone else will sell that very same stuff at an Estate sale.

Thus, the word ‘estate’ merely describes the stuff you own at the time of your death – in other words your assets – no matter how much or how little you own.

B. What is a Plan?

Encarta Dictionary defines a plan as “a scheme, program, or method worked out beforehand for the accomplishment of an objective: as a plan of attack.”

If you do not have your own written plan in place, your state’s law has provided one for you. And the plan that your state’s legislature has enacted (unless you live in Massachusetts) grants ALL rights to your legal relatives and NO rights to your partner.

For the purpose of Estate Planning, a Last Will and Testament and a Living Revocable Trust provides you with the opportunity to do the following (this list is not all inclusive):

• Name your partner (or someone else you trust) as your Successor Trustee (the person who takes over the management of your property -- financial and otherwise – through your Trust when you die or become incapacitated) and Personal Representative (the person who will settle or administer your ‘estate’ through your Will after you die – a.k.a. "executor");
• Name the people you want to inherit all or some of your estate;
• Disinherit (leave out) people who would otherwise – by law – have a right to inherit your estate.

Other documents (i.e. Advance Directives) give you an opportunity to name one or more person – in advance -- who will make medical and financial decisions for you if you become incapacitated:

• A Living Will allows you to decide what medical treatment you wish to receive – or not – when you are at the end of your life with no hope of recovery;
• A Durable Power of Attorney lets you appoint someone to manage your financial accounts;
• A Disposition of Remains gives you an opportunity to name the person you want to have rights to take possession of your ashes or make funeral or other arrangements after your death.

These documents (as well as others which are listed and discussed in detail here) provide you with an opportunity to make an already difficult period less stressful for your loved ones.

It may seem like a hassle to take time to do this but if you do not do it now, your failure to act may cause severe pain to your partner and/possibly your children who may lost their home and most if not all of their assets.

C. How do I Make an Estate Plan?

Once you have decided that you will create Estate Planning documents, your biggest challenge is getting up the gumption to do the work that is required to make your plan effective.

First: Make a list of the stuff you own – your ‘assets.’ A good first step is to sit down and make a list of all your valuable stuff – real estate, personal property, financial assets, etc. If you have a partner, you both need to do this -- together or apart. Put the list in writing. Next, separate the list into three columns, one list will include property that is owned by you, a second list is made of property owned by your partner and a third list of jointly owned property.

Second: Talk about your plan with your partner. After the lists are made, the fun really begins -- you need to talk to each other about your stuff. How will your stuff be divided if you split? Who will inherit your stuff when you die? Do you want our partner to inherit everything? What is your partner dies before you? What if you die together? Try to anticipate all possible scenarios and hammer out a plan for what you want to do with your stuff in case each scenario becomes a reality. This conversation can be very difficult. Don’t let that keep you from going forward with your need to get all your ducks in a row!

Third: Make a list of your ‘cast of characters.’ Who do you want to inherit your stuff and who will you put in charge of making decisions about your health care and finances? List their names! Perhaps you want your partner to make medical and financial decisions for you if you become disabled – or maybe you would rather ask a trusted friend or family member to do so. Think about the possibility that the people on your list will predecease you – who would you want to take their share or make decisions in their place? Collect and make a note of the addresses and phone numbers of all of the people on your list.

Fourth: Talk to those people are naming as a ‘decision-maker.’ This is a great responsibility and you do not want to surprise this person someday with a burden they may not want to carry. Ask if they understand what you would like them to do and if they are willing to do so.

Fifth: Make a plan for your dependents – your children and/or pets. Who will care for them after you are gone? What can you do to provide financial support to whomever will care for them? Who will be your second choice if your first choice is unable to care for them?

Sixth: Tell important people in your life that you have created these documents. The last thing you would wish on your partner is to have disgruntled family members fighting over decision making powers and/or inheritance rights at this very stressful time -- especially since you will not be around to able to defend your wishes! We recommend that you personally tell your family and close friends you have signed these documents. Give copies to a clergy member or close friend who may be able to intervene calmly on your behalf. If you do this you will no doubt greatly ease the burdens of your partner and family who will be trying to care for you or are grieving your death.

II. Example of List Making Worksheets:

A. List 1: My Stuff, Your Stuff, Our Stuff:

List your valuable assets (include separate a space each for your stuff, your partner’s stuff and jointly owned stuff). Valuable assets may include real estate, automobiles, collections (books, art, music, etc.), antiques, family heirlooms, bank accounts, life insurance, etc. But, NOT your socks or toothbrush!

B. List 2: Your ‘Cast of Characters’

Who will make decisions for your health care and finances and who will inherit your estate? Get their full, legal names as well as their current contact information. In case your first choice predeceases (dies before) you, name an alternate for each person on your list. Also list those people you want to disinherit.

C. List 3: Your Partner’s List:

Your partner (if you have one) should also make a Cast of Characters and an assets list. If you do not make your lists together, you should at least go over them to make sure that you are both on the same page. If there are misunderstandings, now would be the time to lay them to rest!

Take the next few days to complete these tasks and then come back next Monday for the next installment in the Get All Your Ducks in a Row series!

In the upcoming issues we will provide in depth information about the legal documents you need to protect your relationship and you rights as well as discussing important topics like what to do after your partner dies and how to deal with a break-up. Other topics will include how to plan for children, how to save your home from government taking, and what to do when you partner says “if you love me you’ll put my name on the deed!”

In the meantime, let us know if you have a specific topic you want us to write about!

See you soon!

Back on Track

This blog was originally planned as a place where we would write about legal issues that affect – in particular – the LGBTQ Community.

Unfortunately, we've been distracted of late as we witness our government destroying the economy, environment, our health and civil liberties.

With such overwhelming threats, we let our efforts to fight for LGBTQ equality take a back seat to larger issues of life and death.

After a week of reflection, we came to realize that there are thousands of professional journalists, independent, free lance writers and bloggers who daily pull back the curtain to shed light on immoral wars, lies, catastrophes and political shenanigans.

But there is only ONE Rainbow Law.

And, thus, with this entry we are setting our direction back on track and will again take up the cause which is near and dearest to our hearts: writing about your legal rights, pending legislation, community activism and presenting effective methods for protecting your rights, your relationship, and your family.

On Monday we will post the first article in our multi-part series entitled:

Life, Love and Family: A How-to Guide for Navigating Through the Predictable and the Unexpected

Our series begins with a discussion on basic legalities, such as:

• How to Set Up Basic Legal Rights and Responsibilities between Partners;
• How to Change Your Name;
• How to Protect Your Partner from Disapproving Family Members.

We will also help you strategize on difficult issues like breaking-up:

• How to Separate Real and Personal Property;
• Resolving Disputes;
• How to Evict Your Ex ;
• Breaking Legal Ties;
• How to Get Un-Civil-Union-ed or Divorced from another State or Country.

And we'll tell you how to plan for and protect your Children:

• Create Legal Rights between Children and Non-Biological or Adoptive Partners;
• Known and Unknown Sperm Donor Issues;
• Dealing with Schools;
• Authorize Partner to Consent to Medical Treatment of your Minor Children.

We will delve into matters of property and home ownership:

• Rights of Survivorship;
• How to Add Your Partner’s Name to Your Deed;
• Different Types of Deeds.

And, we will explain the complexities of Estate Planning concerns in an easy to understand format:

• Wills & Trusts;
• Advance Directives;
• Probate;
• After the Death of a Partner;
• When Your Partner’s Family Challenges Your Legal Rights;
• Disinherit Disapproving Family Members.

We will also focus on special issues of interest to older or disabled Lesbians and Gay Men:

• Keeping Your Home after Receiving Medicaid;
• Retirement Communities and Nursing Homes.

These are just some of the topics we will be covering each week.

We welcome and appreciate any ideas from you. Please submit your ideas or suggestions in the comment section or, if you would prefer privacy, send us an email.

Until then, remember: nothing is worth more than this very minute!

Good Advice from 'The Street'

Yesterday's issue of The Street included an article by Michael Katzan, featuring interviews with Rainbow Law and other Estate and Financial Planning experts:

"According to the American Civil Liberties Union, there are more than 1,000 federal and state benefits offered only to married couples. And 28 states currently define marriage strictly as a union between a man and a woman, according to the Heritage Foundation, a conservative organization that opposes gay marriage.

These legal definitions prevent same-sex couples from enjoying the same tax, inheritance and employment benefits as married couples. "If someone wants to provide for their partner what the law doesn't give them, they need to make up for it with estate planning," says Tanya Harvey, an estate-planning attorney in the Washington, D.C., office of Bryan Cave."

We are happy to see The Street educate around this vitally important issue.

Estate planning is not about death and dying -- It is about life, love and taking care of your family. There is no reason to put it off -- find out what you can do!

Read the article. You'll be glad you did!