Updated 3 December 2020.
Pets are family – make a plan for their care
Pets and companion animals are important parts of our lives and family. Legally a pet is regarded as property, not a ‘person’ (although we might think of them that way!), belonging to their owner. Being property means that a pet cannot hold title to property and so cannot take a direct gift of money as a beneficiary under a will.
As owners, it is important to consider options for their care should you become unable to continue and for when you die.
Expressing your wishes as to what you would like done and documenting a plan for their welfare is helpful to family, friends and your executors. Make sure you let them know.
- Informal arrangements for making provision
- Compile a Pet Profile for peace of mind
- Power of attorney and pet provision in case of incapacity
- Making provision for pets after you die
- What can you do through a will?
- Testamentary trusts for pets
- Long-lived pets
Informal arrangements for making provision
Discussing pet care and making arrangements informally among family and close, trusted friends can work for some. However things can change, people can move away to other locations, move to accommodation which is not pet friendly, or for other reasons become unable to take care of your pet. It is important to have a back-up plan.
Compile a Pet Profile for peace of mind
Since you know your pet the best one of the first things you can do is to document information about your pet’s preferences. It can be helpful (and peace of mind for you) to be able to provide anyone having to care for it in an emergency, if they have some information prepared by you about your pet to guide them. It can also be helpful to your executors and personal representatives after you die in case they don’t know you or your pet. Especially if re-homing is required.
A list of things to consider have been compiled into this Pet profile form which is free to download by clicking here or the link below, and tailoring it to your needs, (Word, DOCX, 20KB). After completion print a copy then tell your executor (personal representative), family or trusted friend about it and where you have put it.
If it is expected your pet will be re-homed, some pet rescue organisations also provide tips on compiling information about your pet, especially if you are considering the option of having your pet adopted out or re-homed after you die, or if for some reason you become unable to continue looking after it.
Compiling your wishes into a document such as the Pet Profile above is practical and makes it easy for others to learn about your pet’s behaviour, food preferences and the like. However if you want particular care arrangements for your pet when you die and wish to leave financial provision for that it is preferable to clearly record your intentions in your will. Some suggestions follow.
Power of attorney and pet provision in case of incapacity
Unforseen events might occur which makes it difficult for you to look after your pet, perhaps temporarily. An enduring power of attorney document deals with financial matters. This document can also be used to record instructions to your attorney as to any money you would like spent on your pet’s care and the extent of veterinary attention. Compiling some information about your pet like the Pet Profile above to be kept with this would be helpful to your attorney.
Making provision for pets after you die
A will is the legal document in which you can express what you would like done with the property you own when you die. As your pets and companion animals are property under the law you can use your will to make provision for their care. But pets can’t inherit directly so avoid making statements like “I give $x to my dog Trixie” for example.
There are different approaches to providing for them, it all depends on your personal circumstances, and what you prefer for your pet and their needs. Some options to consider follow.
What can you do through a will for your pets?
- Make a gift of your pet to a trusted family member or friend in your will, once you have checked that they would be happy to take the pet on. Provide an alternative in case they are unable to do it when the time comes, or if they pre-decease you.
- In addition give a sum of money (legacy) in your will to the proposed recipient to cover the pet’s reasonable costs based on your experience. You can express your wishes to them on how you want your pet looked after, and what you would like if they become unable to continue caring.
- Alternatively you could gift your pet to a registered pet charity, rescue charity or pet shelter to be re-homed or adopted by another pet-lover. Investigate the providers in your area then name your preference in your will, making sure you use the correct name. Provide an alternative as a back-up plan. Some have continuing pet care programs where by they take you pet in return for a bequest under the will.
- To assist others who don’t know your pet prepare a summary of information or pet profile on your pet. Include your wishes for who or what is the preferred situation for your pet and leave this with your will. Download a blank pet profile form below to get started.
Tell your attorney, personal representatives or executors
Inform your attorney (appointed under a power of attorney), personal representatives or executors (appointed under your will), close family or trusted friend about your plans for your pet so they know in advance. It makes things a bit easier at an already difficult time. This way there will be some sort of plan in place for your executors and the pet won’t be left stranded. If you have more than one pet, consider whether you want them kept together, or if this makes it difficult for others to care for them, whether it might be preferable they be separated.
You can establish a special fund in a trust arrangement by will called a testamentary trust for the care and maintenance of your pets during their lifetime. Under such arrangements the trustee holds the money for the benefit of the named pet/s. When the pets die, the fund is wound up and distributed according to the directions made by the willmaker in their will.
While this approach increases the surety of your allocated funds being devoted to pet care, it is also more costly to administer. Choice of trustee is important – someone trusted to carry out the terms of the trust, experienced and preferably independent needs to be appointed in the will as trustee for this purpose. Also consider what is to be done with any money remaining in the fund after the pet dies, and the fund is wound up, whether to an animal charity or elsewhere. Establishing a testamentary trust is a technical area and specialist legal advice should be sought.
A few animals such as turtles, koi fish and some birds (parrots) can live up to 100 years or more. While not the most common of pets, be mindful that if a trust fund is established to for such long-lived animals, that the trust is established in a jurisdiction where it is legally permissible to run for more than 80 years so as to not infringe the rule against perpetuities.
Willmaking and pet provision
Seek legal advice for assistance when making provision for pets in your will. It is important that the wording in your will reflects your intentions and will be workable for your executors/legal personal representatives to carry out.
A willmaker made provision in her will for her cats. She gave a right of residence1 in what she believed was “my property” to a friend. She gave it on the condition that her friend agree to look after the cats for 15 years – or until the last one died. If the friend was not able to do it when the time came the willmaker nominated two other friends as substitutes. At the end of the 15 years or when the last cat died the property was gifted to the cat-carer friend. Substitute arrangements on that were also made with the residence ultimately going to an animal-related charity.
The terms of the will established a fund for the cats’ care from which a fixed amount was to be paid weekly for the their needs and maintenance and veterinary expenses. The willmaker’s wish was for her cats to continue living in their usual surroundings following her death. This fund also provided for house repairs.
The problem was that after the willmaker died her executors discovered that she was not the registered proprietor of what she had described in her will as “my property” – where she and her cats lived. Instead it was a company of which she was the director/shareholder. The company was the trustee of a discretionary trust established at the time of the property purchase. It is easy to think of such an asset as being ‘mine’, but you cannot dispose of property you don’t own in your will. Always pays to double check the official records of ownership when will-making.
Balancing the needs of family and beloved pets
There have been well-publicised cases internationally where wealthy people have bestowed large sums for the care of their pets. In one instance in the US this was at the exclusion of two grandchildren who were disinherited – they contested the will and won. The judge substantially reduced the trust fund for the pet of some 12 million dollars to 2 million. The point here is to be mindful of family members and others “eligible” to make a claim on your estate under the family provision legislation when making your will.
In New South Wales an elderly deceased left his entire estate by his will to to his second wife, then in default to the RSPCA. Nothing was left to his three children from his first marriage. As his second wife had pre-deceased him everything went to the RSPCA. The value of the estate was almost $400,000.
The three children contested the will under family provision legislation being eligible to do so. Their claim was successful and the court reduced the amount given to the RSPCA by 60%.3 Leaving everything to an animal charity is not a good idea where there are children, family and others who may be eligible to make a claim on the estate. The costs of legal advice from a qualified lawyer when making a will vastly outweigh the court costs for a family provision claim.
What if no arrangements are made?
Your pets are your property so if you don’t make any specific arrangements for them in your will, they form part of your residuary estate. Whoever you have designated to inherit the residue of your estate will then be entitled to take your pets. Mostly these beneficiaries will be family. But it may cause difficulties if they all want your pet!
Animal law – a guide compiled by the Law Society of NSW
More information is available from the Law Society of New South Wales: Animal Law Guide New South Wales.
1. A “right of residence” is a personal right bestowed by the property owner on a particular person for them to use the property. They can’t pass it on to anyone else nor lease or sell it.
2. Public Trustee v Smith  NSWSC 397
3. Marshall & Ors v Redford  NSWSC 763
28 August 2014, updated 3 December 2020.
© BHS Legal