Law Talks Episode: Pets and estate planning – how to include them in your Will and Enduring Power of Attorney​

Robyn: Good morning and welcome to another edition of law talks here on 4CRB. And today we’re talking about something that’s sure to touch the hearts of many of our listeners; our pets. And this month, a story reminded us just how strong that bond can be.

The world was saddened to hear of Diane Keaton’s passing on October 11. And her family confirmed she died from pneumonia and tributes poured in, celebrating her career and her generous spirit, and one detail that really struck a chord, it’s been reported she left $5 million of her estate to her beloved golden retriever, Reggie.

Reggie was her world, and the fund is said to help cover his care while supporting charities she donated to. The family statement to People magazine said Diane loved her animals and was steadfast in her support of the unhoused community, adding that donations to food banks or animal shelters would be a fitting tribute.

It’s a beautiful gesture and it’s got a lot of people thinking what would happen to our pets if something unexpected happened to me.

Now to talk us through this, I’m joined by Attwood Marshall Lawyers, estate planning lawyer Leigh Steyn. It’s your first time in the studio, Leigh, so thanks for being here today.

Leigh: Thanks, Robyn. It is and it’s great to be here. I appreciate you having me. Thank you.

Robyn: Well, before we jump into this story, I have to ask, what’s your favourite Diane Keaton movie or moment?

Leigh: It would definitely be the first wives club. A classic favourite. Do you have one?

Robyn: I was going to say definitely that one, it was such a fabulous cast.

Leigh: Absolutely.

Robyn: And just a funny, amazing storyline. So, it has to be one of my or my favourite one as well. Alright, let’s get on to pets. Let’s start with the basics. Can your pet actually inherit money or property under Australian law?

Leigh: That’s a good question. And in short, no, not directly. In Australia specifically, pets are regarded as more property than a person or a dependent, so you can’t, you can only think about it, can they have a bank account? Can a pet have a bank account? No, no, they can’t. So, you can’t directly leave it to them. So that’s actually why you can’t name your pets as beneficiaries in your will.

So, let’s say if you try to leave 5 million to your dog, that gift would legally fail. Which means your dog gets nothing and there’s just no money for his wellbeing and care, which is what your intention is.

But there’s several legal ways to make sure your wishes are carried out so that your pet is cared for and what your intention is, is exactly laid out and the structures just need to be made sure that they are put in place.

Robyn: Okay, so what happens if someone passes away without leaving any instructions for their pet?

Leigh: Like I said earlier, because they’re more of a property, what actually happens is that they become part of your residuary estate which means that your executor or your beneficiary, they need to decide what’s going to happen to that piece of yours, whether it’s a dog or cat or whatever it may be. And then usually what happens is a family member will step in, but I don’t know sometimes there’s just so much confusion around that and sometimes a person, a family member, isn’t actually in a specific position to help out.

Robyn: Or they’re not prepared to take on the responsibility.

Leigh: Well, exactly. I mean a pet’s not, let’s be honest, it’s not a cheap thing to have, like there’s dog food, there’s vet bills, that sort of stuff. So not everybody’s willing to put their hand up for you. And something that people don’t actually think of often is that pets are grieving, they’ve lost their person as well. I mean, they’re close to our hearts when you think about that. So, leaving clear instructions, it really makes a difference, and it just ensures that there’s a smooth transition, it avoids the stress all around and makes it simpler.

Robyn: So let’s talk about the options that are available. What can people do to provide for their pets?

Leigh: There’s actually a few really good options, so that’s a great question. So, what you can do first off is include specific provisions in your will. Straightforward and easy. You can name who you want to have your pet. You can include instructions about their care, such as what their diet requirements are, their vet, who their specific vet is sorry and what their favourite toys are or activities, and then even allocate money to help cover those expenses. It’s really important that the money goes to the person caring for the pet and not just the pet itself.

Robyn: Yeah, I understand. Yeah.

Leigh: Then another way is that you can leave a legacy like a gift to a trusted friend or family member where you leave a set amount or a percentage of your estate to someone on the condition that they look after your pet. But also, with that, you’ve got to confirm with the person that they’re both willing and able to take on the responsibility. And don’t just rely on that one person. Maybe make a backup plan just in case you never know whether that person’s available in a position to take it.

Robyn: And things always change.

Leigh: Absolutely. Then a more structured way would be to do a pet trust and some people do choose to set up a trust. It’s just a small trust which funds your pet, the pet’s care and gives a more complex option. This needs really careful drafting by an experienced lawyer, because legally, like I said earlier, animals can’t enforce the trust. They can’t have a bank account, so it’s quite a bit of drafting that needs to go in there.

But when done correctly, it can ensure ongoing care and accountability, which is great.

Then, lastly, something that, well, not lastly, but another option I should say is to consider registering your pet with a pet legacy program and not many people in Australia know that we’ve actually got this. We’ve got the Animal Welfare League of Queensland, and they’ve got a wonderful program that’s available and all you do is you sign up to it,  it’s called the legacy pets program, which guarantees that if you pass away, they’ll rehome your pet into a loving home and provide free vet checkups for life. That sort of stuff, depending on your circumstances and that. So, they’re really, wonderful. A good place to start as well.

Robyn: So that’s probably a good option for people who don’t have anyone that they could step into that role to care for their pets. And if that was the case, how do you go about registering with a pet legacy program?

Leigh: A quick Google search that’s a good way you could start there. You should be able to find it on their page. The Animal Welfare League of Queensland, their page and then you complete the form provided by the Welfare League and add in your pet’s care information and their needs, put a profile up and then also include whatever special wording that you need in your will when you come to us, as estate planners.

Robyn: And I imagine other states would have similar programs in those areas as well.

Leigh: Yes.

Robyn: What about people who may lose capacity, say through illness or perhaps dementia? But are still alive and they just can’t care for their pets anymore. What happens to their pets then? Or how can people put measures in place to ensure the pets will still be looked after?

Leigh: Oh that’s such an important point as well. You know estate planning, it’s not just about death. It’s not just about your will. It’s also about incapacity and people don’t think about it. This is where you would enforce it in your enduring power of attorney. You can appoint someone you trust to manage your affairs, and if you are unable to, and that includes caring for your pets, you can give them authority to use your funds to care for your pets, and arrange vet visits and that sort of thing.

But without that instruction, pets are just left in limbo and it happens on a daily basis. Put your wills in place, put your enduring powers into place. Because it’s not just about people, it’s about your pets too.

Robyn: It’s probably one area that’s overlooked a lot.

Leigh: Absolutely.

Robyn: So, this has been such a fascinating discussion, and I think Diane Keaton’s story has reminded us just how deep that bond is.

Leigh: Yes, yes, it really. Yes. And like you don’t need millions of dollars to make sure your pet is looked after like Diane did.

Robyn: Very well looked after.

Leigh: You just need a few simple steps, and those simple steps are straightforward and easy. Update your will, put an enduring power in place and just speak to the organisations like Animal Welfare League about the programs they have. It can just make such a difference. Planning ahead is the best way to make sure that animals who’ve given us so much love are safe, happy, and cared for when we’re gone.

Robyn: Well, it’s been a thoughtful conversation and such an important reminder that our pets depend on us in every way, even when we’re no longer around. Thank you, Leigh, for sharing such practical advice on how we can plan ahead to make sure our furry friends are cared for with love and security.

Leigh: Absolute pleasure. Thanks for having me.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock. And if you did miss any part of this interview, it will be available on our website 4crb.com.