Making Provision For A Pet In A Will
For many Australians, a pet is as valuable a friend or family member as another person. However, in every Australian state and territory, a pet is legally considered property that belongs to an owner. When the owner passes away, the ownership of the pet must pass to another person. As property, the pet also cannot be a direct beneficiary of a testator’s will. This article explores the options for making provision for a pet in a will.
What Is A Pet?
A pet is a companion animal kept for entertainment or companionship. A pet can be an important part of an owner’s life and is often treated as a member of the family. They are entirely dependent upon their owners for their well-being and care. An owner must therefore give attention to planning for the pet’s future when making their other testamentary arrangements.
Some pet owners prefer to make informal arrangements for their pet with a trusted friend or family member. A person can ask someone who they believe is able and willing to take over the care of their pet in the event of their death. If the owner has more than one pet, they must consider whether they want them to be kept together, or if it is more practical to give them to different people. This may be the only way to ensure safe homes for all pets.
This can seem like sufficient preparation, but there are reasons why it is not the best approach. Circumstances can change, people can move away or into housing that is not pet friendly, and there may also be other reasons why someone is no longer able to take on the responsibility. In that event, it is important for the pet owner’s peace of mind to have a backup plan in place.
Testamentary Arrangements For A Pet
Because a pet is considered property, if there are no arrangements in place then the pet becomes a part of the residuary of the deceased estate and will go to the residuary legatee. If this person is not interested in caring for the pet, they may give the pet away to a shelter or have the pet put to sleep. If the testator wishes to avoid this risk, they can make provision for the care of the pet.
As property, a pet is unable to hold ownership of property and therefore cannot directly receive assets under the will. Therefore, it is important that the testator avoids the use of statements such as “I give $10,000 to my cat Harold”. However, a testator can use his or her will to make provision for the care of a pet. A testator can gift their pet to a trusted family member or friend in their will, after checking that they are happy to adopt the pet as their own. The bequest may specify a substitute beneficiary in case the beneficiary predeceases the testator or is no longer able to take over care of the pet. For instance, the testator might state: “if at any time in the future you are unable to care for my dog, it is my wish that you give her to my sister”.
Making Provision For A Pet In A Will
It is common for a testator to leave a legacy for the new caregiver to provide for the financial cost of pet ownership. This legacy can take the form of a testamentary trust to provide for maintenance during the pet’s lifetime. This legacy ideally covers reasonable costs of the pet (food, vet bills, grooming costs, pet insurance etc) for the estimated length of the pet’s life. In this case, a trustee holds the funds for the benefit of the named pet until such time as the pet passes away, the trust is wound up, and the trustee distributes the residue according to the will’s instructions.
A testator should be aware that a trust is more costly to administer and the trustee will need to make ongoing decisions on the care of the pet. Some pets, such as parrots and turtles, can have long lifespans. A testator should be conscious that in some jurisdictions a trust cannot run for longer than 80 years, and make alternative plans for the care of a long-lived animal.
In the event that a testator has no one who can take on the care of the pet, there is the option to leave a pet to a registered pet rescue for rehoming. The testator should thoroughly investigate the charity and make sure to use the correct legal name of the organisation in the will. Some pet charities will provide continuing care for a pet in return for a testamentary bequest.
Prepare A Pet Profile
Whether a pet owner makes informal or formal arrangements for their pet, they should consider leaving instructions for the care of their pet for the next caretaker. An owner knows their pet best, including details of their medical history, dietary preferences and their favourite toy. The owner should compile a profile documenting this information to give to family members in case of emergency. It is also extremely helpful to include this profile with the will to give to the pet’s future caretaker. A pet profile might include:
- Any pedigree or breeding paperwork;
- The pet’s usual brand of food or recipe for home-cooked food, and their preferred treat;
- Any food allergies and intolerances;
- Vet history, including up-to-date information on vaccinations and medications;
- The pet’s favourite activities, perhaps a walk schedule, and games; and
- The meaning of certain pet behaviours.
As a pet owner, you may be concerned with making provision for a beloved pet in your will. The first step is to talk through your wishes and document a plan for your pet’s welfare that you can share with family, friends and your executor. At Armstrong Legal, our friendly and experienced solicitors understand your concern over your pet’s welfare and can help with estate planning for after your death. Please contact or call our pet-loving staff on 1300 038 223 to discuss your legal needs. Alternatively, if you are concerned over the welfare of a deceased loved one’s pet and need advice or representation, our contested wills team is here to help.