What happens to my pet when I die?

Greer M. Jacks

Background

Who is going to care for your beloved pet if you die before it does? Will they have sufficient funds to do so? If you have multiple pets, will they be separated or will they be adopted together? How will you ensure that the person you choose to care for your pet will honour your wishes? These are important considerations in estate planning that often do not get the attention they deserve.

Many people presume that one of their friends or family members would care for their pets if they died unexpectedly, but that assumption is risky for the health, safety and comfort of your beloved pet and can be financially and emotionally burdensome for the appointed caretaker. Fortunately, with prudent planning you can avoid the uncertainty and rest easy knowing that your pets will be cared for if something were to happen to you.

The Law and Your Options

Under British Columbia law, pets are personal property. Therefore, unlike in many US states, it is not possible to leave direct gifts of property to your pets in your Will. There are options in BC for people who want to ensure that their pets are taken care of after they die, but unfortunately these are seldom discussed, even by the most experienced estate counsel.

There are essentially two ways in which you can provide for your pet in your Will:

1. You can give the pet to a trusted friend to act as your Pet Protector along with a certain sum of money, trusting that they will look after the pet for the rest of its life in the same manner that you would have; or
    
2. You can name a Trustee to govern funds set aside for your pet and ensure that your Pet Protector actually uses the money for the care and benefit of your pet.

Although valid, such trusts are still subject to the common law rule against perpetuities (also known as the “rule against inalienability” or the “rule against indestructibility”), which provides that every estate or interest must vest, if at all, within 21 years of some life in being at the time of the creation of the trust. In British Columbia, this period has been extended by the Perpetuity Act [RSBC 1996] to 80 years in certain circumstances, but for specific non-charitable trusts, section 24 of the Perpetuity Act provides that non-charitable purpose trusts that create no enforceable equitable interest in a specific person must be construed as a power to appoint the income or capital and is only valid if it is exercised either by the original Trustee or the original Trustee’s successor within a period of 21 years. This limitation period can cause a problem for owners of pets that can generally live beyond 21 years. There are options that can be employed for pets with long life expectancies such as horses, parrots and tortoises too, but for the purposes of this short article we will not go into detail on this issue.

There are advantages and disadvantages to each approach which will be examined in more detail below, but either way you choose, your pet is going to be protected to a higher degree than without any plan at all and no one is going to be left unsure as to what to do with your pet(s) if you suddenly pass away.

Option 1: Cash Bequest to a Friend to Take Your Pet

Perhaps the simplest way of making provision for your pet in your Will is to leave the pet with a trusted friend, along with a sum of money for the care and maintenance of the pet for the rest of its life. This provision in your Will can be drafted broadly to include any pets that you may own on the date of your death, and even provide your Executor with discretion to choose the best person to receive the pet and the money when you do pass away. This discretion could be coloured by your preferences as described to your Executor while you are living, as well as the circumstances of each potential candidate upon the date of your death. Simplicity sometimes has its pitfalls though, and that is true here.

Employing this method leaves open the possibility that the person that you trust to care for your pet will instead use the money to benefit themselves; there is nothing preventing them from doing so and nobody looking over the situation. Also, any leftover amount after your pet has died would stay with the person you appointed as your Pet Protector. You might be just fine with this, but it is a conflict of interest because your Pet Protector might use the funds conservatively and not necessarily in the best interests of your pet, so that they can receive more money in the end. There is also the potential for that person to become insolvent or laden with judgments from creditors and the money set aside for the care of your pet could be gobbled up by creditors.

These risks might be okay with you if you trust the person you appoint to be your Pet Protector and do not want to create an administrative burden on a separate Trustee to oversee the situation, but it is important to know and appreciate the risks and then make an informed decision.

Option 2: Pet Trust

Another option is creating a trust for your pet in your Will. Pet trusts are not just for eccentric wealthy people. You have undoubtedly heard about wealthy people leaving large amounts of money to their pets. Oprah Winfrey, although still with us, claims to have set aside a cool $30 million for her dogs if she were to predecease them. That amount might be a little more than necessary, but the idea is clear: she has taken responsibility for the health and happiness of her dogs no matter what happens to her.

To establish a Pet Trust in your Will, you would need to choose a Trustee and a Pet Protector, which is the person who would care for your pet(s). The Trustee could be the same person whom you choose to be your Executor, or someone else. You would leave a certain sum of money to the Trustee specifying certain terms of the trust, including how and when transfers of funds would be made to your chosen Pet Protector. You should also appoint an alternate Trustee and an alternate Pet Protector. You would also specify where the residue of the trust would go after your Pet(s) passed away. In order to make this a valid trust it should specify the animal or animals that it pertains to and therefore it is a more rigid provision that must be drafted into your Will.

The benefit of employing the Pet Trust is that there is no incentive for your Pet Protector to use the funds sparingly because they will not receive the residue themselves. Also, the residue of the fund could be directed to a charity of your choice (perhaps to benefit other less fortunate animals than the one(s) that you are making special provision for in your Will?).

There are more administrative requirements when a formal trust is created, and it does require constant oversight by your Trustee. Despite the fact that there is not a beneficiary who can enforce the trust, a trust for the maintenance of a specific pet is one of the very limited categories of non-charitable purpose trusts considered valid at common law.

Conclusion

Either way you decide to plan for your pet(s), important considerations will include things like the ability of your chosen Pet Protector to provide the lifestyle necessary to maintain a high quality of life for your pet(s). This might include any pets or children that the potential candidate has or may have and their work and home life obligations as well. You will be able to set a good example for your children, and rest easy knowing that you have made plans and provision for all of your family members. Talk to the lawyers at Crease Harman LLP about revising your estate plan to include your pet(s)!