[WSBAPT] WSBAPT Digest, Vol 109, Issue 3

[Philip N. Jones]

Unlike Oregon, Washington requires that the beneficiary of a pet trust must have a vertebrae.
So you and your favorite oyster will have to move to Oregon.
And if you need legal advice, come see me.  Bring butter and shallots.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Carmen Rowe
Sent: Wednesday, October 4, 2023 3:44 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] WSBAPT Digest, Vol 109, Issue 3

If she wants to create an actual trust, you can do that in Washington:
https://app.leg.wa.gov/rcw/default.aspx?cite=11.118

I'm not an estate lawyer per se, but have run into this in various ways in the course of my professional and personal life (I have been in animal-related personal arenas for some decades now on various fronts)

But from my understanding, and thus far practical experience in what I've seen, for distribution as "property", while not "real" property (real estate), they are "real" property in that they are, legally, property. (Thus also why you need express legislative blessing in a state in order to be able to have a trust for them)

So they can (and likely must) be handled as any other "property". The only way that someone other than the person designated in the will might claim they should have them instead because of emotional reasons is if that person can show some pre-death claim to them - just like any other property (proof they purchased the animal/were the true owners, etc.).

See, e.g., State v. Abdi-Issa, 199 Wn.2d 163 (2022)(pets as matter of law are personal property); Flynn v Woodinville Animal Hosp (unpub 84106-8-I 2023)(rule against recovery for emotional distress damages extends to emotional support animals, as "degree" of emotional attachment is not the question); In re Marriage of Niemi 2021 (in divorce, pets personal property, not a "special category" of property allowing visitation or other deviations from laws regarding distribution of property).

When considering pets are property after someone's death, a bit of a quirk:

I even know of a few cases where the probate PR (and at least one bankruptcy) were selling off the animals (over heart-broken objections of heirs) as assets as the estate ran short of otherwise being able to met their debts - not because the PRs were heartless, but because the law requires it (being large parrots they had meaningful value as an estate asset. I've seen similarly with valuable horses, cattle, certain reptiles, or anything with meaningful market value).

I would be curious if this can be avoided if transfer of the "property" is considered immediate upon death, or how you would accomplish that. In my days of drafting dog purchase and co-ownership contracts, and ownership of potentially valuable semen, in the dog show world (where you both wanted to avoid heirs getting into a co-ownership or inhibiting the breeder and/or co-owner's contractual rights in the dog, and avoid the potential for selling off anything of value), we tried to address this via an automatic transfer to the co-owner upon death, akin to jointly held bank accounts. I can't say whether a court would recognize it, it was just the best way I could think of to try and minimize risk of the issue.

So in short: I think the principle is still pretty solid in WA law that animals are personal property - and thus you'd handle them exactly as that in any will.

A bit of popcorn thoughts from someone outside the estate planning context specifically, but hopefully helpful.


Carmen Rowe

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Phone: (360) 669-3576 (direct cell)
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On Tue, Oct 3, 2023 at 6:57?PM Kate Szurek <kate at skagitlaw.com<mailto:kate at skagitlaw.com><mailto:kate at skagitlaw.com<mailto:kate at skagitlaw.com>>> wrote:
Client wants to be able to name who is to receive her pets (parrot, donkey, and horses) when she dies using a TPP list.  Does that work?

Animals certainly aren?t real property and they are not intangible.  But I?ve never seen it addressed and I?m not finding anything that clearly makes this a realistic possibility.

Your thoughts??  Your experiences??

Thanks, as always.

Kate
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