We all love our pets, so it’s important to ensure they’re cared for when we’re gone or if we lose the capacity to care for them ourselves. The provisions you make for your pets in your Will, or conversations you have between friends and family can help determine what happens to them and which new home they will go to when they are no longer in your care. Attwood Marshall Lawyers Wills and Estates Estate Planning Lawyer, and mother to Mimco the toy poodle, Natalie Comerford discusses the best ways to ensure your fur-family is taken care of if something unexpected happens.
Background
Pets play an important role in most families. In fact, it has been estimated that 61 per cent of Australian households have a pet! What many pet owners overlook is what will happen to their pet if they can no longer care for them. After all, most people expect to outlive their pets.
Although many people plan for what will happen to their belongings and their children by making a Will, it is important to remember the furry family members who rely on you for care and companionship when planning for the future.
The best way to plan ahead is to ensure your pet is also included in your estate plan.
There is a lot that can be done to give effect to a person’s wishes regarding their pets, but it is a complicated area that usually requires specific legal advice from an experienced estate planning lawyer.
If communicated and dealt with appropriately in your estate plan, you can ensure that your ‘fur family’ are cared for by someone you trust, and that their new carer will have the financial means to support your pets. Everyone should have a properly drafted Will prepared by an experienced estate planning lawyer anyway, so making sure your pets are taken care of is not a huge issue when you have your Will done. The key is to see a professional who knows what they are doing!
Estate planning for pets
A pet cannot be named as a beneficiary in a Will. Pets are considered personal property or a ‘chattel’ in the eyes of the law, much like a person’s motor vehicle, jewellery, or furniture. Therefore, without a specific provision for a pet in a Will, limited protection may be available for them.
In some circumstances, relatives or friends will step in to care for a pet, however, sadly that is not always the case, and many pets end up in an animal refuge, or worst case, are prematurely euthanised if no new home can be found. For pet owners, this is a daunting realisation and a devastating outcome for all concerned.
When a Will does not provide instructions or wishes relating to the care of a pet, duty to rehome the pet falls upon the executor of the deceased’s Will. Without a Will, the responsibility passes to whomever might be the administrator of your estate.
How to provide for your pet in your estate plan
The options you may wish to consider to ensure your pet is cared for after you are gone include:
- Making provision for the care and re-homing of your pets in your Will
- Giving a legacy to a friend or family member via your Will so that they can care for your pet
- Setting up a testamentary trust for pets
- Taking advantage of Legacy Pet Programs, which are available through associations such as the Animal Welfare League or the RSPCA.
Make provision in your Will for pets after you die
A Will is a legal document that communicates what you wish to happen with the property you own when you die. As your pets are considered property under the law, you can use your Will to make provisions for their care. If pets are not specifically identified and dealt with in your Will, they will automatically form part of the residue of the estate.
In your Will, you can provide specific instructions as to where you would like your pet to live, who you would like to care for them, and what type of care you wish them to receive.
You can also outline instructions about specific funds that should be used to care for the pet.
Drafting specific instructions makes it easier on everyone involved, especially the pet who will be able to transition to their new home with minimal disruption.
It is important to note that pets can’t inherit directly as a beneficiary. Many people who do not obtain professional advice from an experienced estate planning lawyer may draft a Will trying to leave gifts to their pets, and although this is a lovely sentiment; the gift will fail.
An estate planning lawyer will be able to ensure the correct wording and structure are used when drafting a Will so that the Will-maker’s intentions will be feasible for the executor or legal personal representative to carry out.
Giving a legacy to a friend or family member to care for your pet
If you have a trusted family member or friend who will care for your pet, this option may work very well. A simple clause leaving your pet and a legacy to the carer you appoint, while not legally binding, will permit the carer to use the legacy for your pet’s ongoing care and support.
It is essential that you discuss such a proposed gift with the carer of your choice to ascertain if they are willing to accept this responsibility.
There’s no point appointing someone to be the carer of your pet if they live in accommodation that prohibits pets, or if they own other animals who would not be able to share the environment with your pet.
Giving a legacy to a friend or family member may not always be suitable, especially if the Will-maker does not have anyone in their life that they consider trustworthy and reliable. Unfortunately, there have been instances where people have left a legacy to someone to care for their pet, and that person has gone ahead and had the animal euthanised and utilised the money for themselves. If you do not have a family member or friend who shares your love of animals and you know will take the best of care of your pet, it may be worth exploring other options available.
Right to occupy
As pets cannot be a beneficiary in a Will, they cannot inherit a home to continue to live in after their owner passes away. However, there are some more complex estate planning tools that can be utilised to provide people with a right to occupy a home for a period of time contingent upon them caring for your pet in return.
Using such alternatives involves some complex Will-drafting skills and would require the advice of an experienced estate planning lawyer to ensure this strategy is executed correctly.
Testamentary trusts for pets
A dedicated fund can be established in a trust arrangement in a Will for the care and maintenance of pets during their lifetime. This is referred to as a testamentary trust. Under a testamentary trust arrangement, the trustee holds the money for the benefit of the named pets. Once the pet dies, the fund is wound up and distributed according to the directions made in the Will.
While this approach increases the surety that your allocated funds will go towards the care of your pet, it is more costly to administer. When choosing a trustee, it is essential to select someone who is trustworthy to carry out the terms of the trust and is well suited to caring for a pet. Also, consider what to do with any money remaining in the fund after the pet dies. Once the fund is wound up, you may choose to donate the remaining funds to an animal charity or hospital to continue to support other animals in need.
Pet Legacy Programs
Animal Welfare League Queensland (AWLQ) works with local councils, rescue groups, state government and the community to improve the outcomes for abandoned and surrendered pets. They have several amazing programs for pets who require rehoming when their owners are no longer around or able to care for them. In fact, they rehome an average of 120 animals each week from their shelters.
The Legacy Pet Program ensures that when someone passes away, their companion animals go to loving homes that best suit their needs. When a pet is part of a Legacy Pets Program, they receive free veterinary check-ups and routine care for the rest of their life, even after they have been rehomed.
To ensure your pet falls within the Legacy Pet Program, you simply need to include specific wording in your Will directing the Animal Welfare League to care for the animal and fill out a registration and pet care profile which is then submitted to the Animal Welfare League.
The Animal Welfare League also offer a program called “Golden Hearts Seniors Pet Support Program”. This program was a world-first when launched and breaks down the barriers that can stand in the way of senior people owning pets. We all know that owning pets has countless benefits including helping people manage loneliness, depression, and providing companionship. There have been many studies that have shown that the bond people have with their pet can have significant health advantages, including decreased blood pressure, increased opportunities to exercise, better cognitive function, and more socialising opportunities.
Knowing all this, we can only support any opportunities that make it easier for the elderly to own a pet.
The Animal Welfare League’s Golden Hearts program provides seniors with a range of support services, including emergency boarding and peace of mind knowing that their pets will always be cared for.
Pet provisions in an Enduring Power of Attorney if you can no longer look after your pet while you are still alive
Sudden injury or illness may impact someone’s ability to continue to look after their pets. It is not uncommon for many pets to be forfeited when their owners suffer an illness that impacts their mental capacity, such as dementia or Alzheimer’s.
When you are talking about issues that impact mental capacity and making decisions for yourself, or those that depend on you, then this is where an Enduring Power of Attorney will come into play.
As part of the estate planning process, an estate planning lawyer will discuss the need for an Enduring Power of Attorney, and other estate planning tools, to cover all potential issues that can arise, not just when someone passes away, but also during their lifetime.
When someone loses the mental capacity to make decisions for themselves, and Enduring Power of Attorney will come into effect and the persons appointed as the attorney will have the power to step into that person’s shoes and ultimately make all the same decisions that person would usually make, on their behalf.
Anyone can suddenly fall ill after suffering from a stroke, a work accident, a motor vehicle accident, or other illness. These are just some of the reasons why everyone should have an Enduring Power of Attorney in place to ensure that someone they trust and who is willing to act, will be able to take over the management of their financial and personal affairs, including looking after their pets if that is what they wish.
If you are no longer able to remain at home, and you have pets that need to be rehomed, an Enduring Power of Attorney can include instructions for your attorney regarding money your may wish to allocate to your pet’s care and the extent of veterinary care you are willing for them to receive.
This can make it easy for your attorney to know what matters most to you and what decisions you want someone to make for your pets.
Without stipulating these instructions in an Enduring Power of Attorney, you will be leaving it to chance that someone will do right by your pet.
Attwood Marshall Lawyers – helping people plan for the future and preserve their wishes
Treating your family pet as a priority when getting your legal affairs in order is vital to ensure they are cared for and loved in your absence.
There are many options available that an experienced estate planning lawyer can run through to help you obtain the peace of mind that all your dependents, including the furry kind, are considered and cared for.
We take a holistic approach to estate planning and will help ensure that your plan aligns with your specific family circumstances, the types of assets you hold, and how you wish to distribute your assets after you pass away.
To review your estate plan or book an appointment with one of our lawyers, contact our Wills and Estates Department Manager, Donna Tolley on07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 any time.
You can meet with our estate planning lawyers at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more:
Estate Planning 101 – what is ‘estate planning’? What you need to do to put a plan in place to protect your estate and your family
Doris Day tribute – Can you gift your estate to an animal charity? – Succession Law
Enduring Power of Attorney – one of the most crucial and powerful documents you can create in your lifetime
