Providing for my pet in my will
It’s no secret that we love the companionship of a furry, feathery or scaly friend. It’s been reported* that 65% of Australians consider their dog or cat to be part of the family. However, the legal system continues to view all animals as ‘personal property’. Due to this disparity, it is particularly important that you make provision in your estate planning for your pets. Helen Phelps, Lawyer with Snedden Hall & Gallop, provides a helpful guide for pet owners who want to plan what will happen to their pet in the event that they lose capacity or pass away.
What happens if I lose capacity?
While a will provides for what happens following death, you can also provide for a situation where you lose the ability to care for your pet. Your enduring power of attorney can be used to communicate your instructions regarding the care of your pet. In the event of a loss of capacity, your appointed attorney is able to make decisions regarding your property, finances, health care and personal care matters. By including instructions in your power of attorney relating to your pet you can provide your attorney with authority to fund the care of your pet, enter your home to care for your pet and, if necessary, make decisions regarding rehoming your pet.
What happens if I die?
There are three primary ways that you can provide for your pet in your will:
- Gift your pet to a family member, friend or charity As with any other personal property, a pet can be gifted to a beneficiary of your choosing. This might be a family member, friend or charity. As with any other gift, the beneficiary has the option to refuse, so it is important you speak with your chosen beneficiary while preparing your estate plan. Some Australian charities operate legacy programmes to assist with the re-homing of your pet following the death of the owner and may be a suitable beneficiary in your will.
- Gift your pet with a lump sum of money If you are gifting the pet to a family member or friend you should consider making a conditional or unconditional gift of a lump sum or a share of your estate to provide care for your pet and/or as a token of thanks to the new guardian of your pet. This option may rely on you being able to trust that the funds you provide will be used to care for your pet, as there is no practical way the executor of your will can ‘supervise’ how the funds are allocated once provided to your pet’s guardian. If you are considering giving your pet to an animal charity, you might like to consider visiting the facilities that your pet would be housed in, to ensure your pet will be happy in that particular space.
- Gift your pet with an established trust In usual circumstances a trust imposes an obligation on one party (the trustee) to hold property for the benefit of another party (the beneficiary). This can be extended to allow the trustee to hold property for general charitable purposes. While a pet is considered property and generally would not be able to benefit from a trust, the law has taken a somewhat liberal approach to the creation of trusts for the care of pets. While there are exceptions, the general approach to trusts for the care of pets is that provided the trustees are willing to carry out their obligations the Court will recognise the trust.
Establishing a trust under your will with the express purpose of providing for your pet over their lifetime is the most secure way you can make sure funds are being used as you would like them to be, however, you may prefer to keep things simpler rather than establishing a specific trust in your will. When setting up a trust to provide for the care of your pet you may want to consider how much money should be placed in the trust, and who you would like to nominate as the first and backup options to care for your pet. You should also consider what is to happen to any remaining trust funds after the death of your pet.
What happens if I die without planning for my pet?
Under Australian law, companion animals are considered personal property. Like any other personal item then, your pets will be passed on to your beneficiaries. Your beneficiaries may however not wish to take your pet and so your executor may well be left with the practical difficulty as to what to do with your pet in those circumstances.
Getting your documents right is not all you need to do…
Making sure that you have an enduring power of attorney (EPAs) and a valid will is really important for your pet. However just as important is communicating your intention with your pet’s potential new family and making sure that they are part of the decision and in total agreement.
Snedden Hall & Gallop Lawyers can assist you
For any pet owner, planning these details will ensure that your furry, feathery or scaly friend is cared for. The Wills & Estate team have expertise in all aspects of estate planning and can help you ensure your final wishes are respected. At Snedden Hall & Gallop, we have vast experience in ensuring that our clients are supported in the creation of their important personal documents including Wills and EPAs. Please contact us by phone on (02) 6285 8000 or by email.
- * The Animal Medicines Australian 2016 Pet Ownership in Australia report
- Image: The author’s furry friend is shown on the left!