When I die, what will happen with your pets? Who gets them? Will they be cared for? If I die before I wake, who will feed "Jake"? Huge, legit concerns. And one of them made for a pretty fine country song back in 1991. I'm not telling you which.
In Kentucky, and most states - when someone dies (decedent), a court procedure must be initiated to ensure their belongings are disposed of properly. This is probate. In Kentucky, the rules for disposing property differs depending on if the decedent had a will (testate), or not (intestate); and if the property is real estate (real property/realty) or personal (chattel).
As with many areas of the law, probate uses terminology that sounds like something right out of Game of Thrones. This is mainly because most of the terms came over from England; and have somehow stuck around. I'm not even joking.
In the eyes of the law, pets are considered personal property.
If the decedent died intestate, there are statutes that clearly and strictly govern how property is to be disposed. This is called "intestate succession", and trust me - you don't want to read about it because its incredibly boring. But....the important part is you have absolutely no control over who gets your pets. None. The law is clear, its followed to a tee, and no one will have any ability to deviate from it. Not what you want.
If the decedent had a will, courts GENERALLY follow it; with some exceptions that I wont go into for fear of putting you to sleep. Your will, gives you the tools you need to care for your pets after you die. You can name who you want to care for your pet, leave money for that person to care for your pet, etc.
My favorite pet friendly estate planning vehicle? Trusts; testamentary trusts (OK Im allowed one lame Bond/estate planning joke per piece). A trust is a legal entity created by law, where one person (Grantor) places property (corpus) in the possession of another (Trustee), for the benefit of someone/something (beneficiary). A testamentary trust is a trust created by a will.
Why do I like it better? Wills go through probate, probate goes through court, and a probate case must be eventually closed. Also, if you will money to someone to care for your pet; there's no legal requirement they use the money properly. They could go buy a new car, new clothes, etc.
A trust on the other hand, doesn't require judicial oversight; and it's perpetual until the money runs out or the purpose for the trust ends. Plus the trustee has a fiduciary duty to use the money as directed in the trust, pursuant to the restrictions/guidelines in the trust document and state law. Finally it lets the will go through probate, and the probate be closed while the trust continues on.
I prefer trusts, but they too have their own limitations. Each state and each case is different; so definitely consult with an attorney to discuss which choice would be best for you and your pet.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Tuesday, June 21, 2016
Friday, August 7, 2015
Critters and the Court System
In certain areas, the law greatly lags behind society. This is true in technology, social media, and pets in divorce actions. In a typical divorce case, the two main disputes concern custody and property distribution. Currently, under the law there are two types of property: real and personal. Real property includes all real estate, and attachments. Personal property covers everything else; including pets.
In cases with children, usually the pets go with the children. In other cases, it isn't so easy.
In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.
Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.
Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.
A growing number of states (30, according to www.animallaw.info) give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.
What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.
How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.
In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.
There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.
Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.
Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.
Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.
So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.
In cases with children, usually the pets go with the children. In other cases, it isn't so easy.
In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.
Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.
Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.
A growing number of states (30, according to www.animallaw.info) give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.
What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.
How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.
In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.
There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.
Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.
Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.
Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.
So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.
Tuesday, February 24, 2015
"Stingray" devices: Are your rights being violated?
The Washington Post has a very informative article discussing new "stingray" devices used by law enforcement (http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html).
Basically a stingray mimics a cell phone tower. It tricks YOUR cell phone into thinking it's connecting to the tower. Instead, your phone actually connects to a device that can take whatever information from your phone they want. It can also be used to track your location. It all happens without your knowledge.
The picture is from the article, and is a great illustration of how the stingray works.
To date, Im not aware of any reported rulings one way or the other regarding 4th amendment or other constitutional issues surrounding stingrays. For now, the issue appears to be undecided.
Monday, July 28, 2014
The Ultimate Drivers Exam
I'm convinced. If you can drive in the parking lot of any EKY walmart - you can drive anywhere. ANYWHERE.
Crackheads. Old people. Ancient people (on scooters or in cars). Along with the general person who has no concept of what's going on around them.
All these people trying to navigate a parking lot while obeying virtually none of the existing traffic laws. Noone understands the working of a 4 way stop. Crosswalks become a game of "chicken"; pitting human vs car.
Its total mayhem.
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