Although it may be tempting to make light of estate planning for pets, many pet owners worry about the fate of their beloved pets when they die. Although pets are very often cared for after the death of their owners in informal, non-legal arrangements, such arrangements may not be adequate and pet owners should make a legal plan for the proper care of their pets after their death.
A basic principle that must be observed when making provisions for pets in Wills is that a pet is property and, as such, is considered part of a deceased’s estate. Therefore, a pet owner cannot legally give property to property. In other words, a pet owner cannot leave cash or other gift(s) directly to their pet, thereby making the pet a beneficiary of an estate because property cannot hold title to another piece of property. Such a gift in a Will will fail. A pet owner can, however, gift his or her pet to another person in a will so that that person will become the owner of the pet and have all the rights and obligations of a pet owner. Furthermore, if a person dies without a will, the pet will pass to the next-of-kin as part of the deceased’s estate according to provincial law.
The person to whom a pet owner may gift his pet in a Will may appropriately be called a ‘caregiver’. As is often recommended when appointing Executors (Estate Trustees), Guardians for minor children or Beneficiaries for gifts of other property, it is a good idea to provide for an alternate caregiver for the pet (which would in actual fact constitute an alternate beneficiary) in case the first named caregiver is unwilling or unable to take the pet. In both cases, the caregivers should be consulted before they are named in the Will as to whether they would be willing to take the pet.
Most pet owners who gift a pet to a caregiver by Will wish to leave a cash gift to the caregiver as a show of appreciation and to assist with the costs of caring for the pet. The cash gift can be an outright gift with unenforceable wishes or a conditional gift (we will discuss conditional gifts in a future article). The most practical type of gift is an outright gift to the caregiver with a non-binding wish that the gift be used for the care of the pet. This is appropriate where the owner completely trusts the caregiver, the amount is not excessive and the owner wishes to avoid burdening the Estate Trustee with the task of monitoring the use of the gift.
***
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
