Planning Ahead your Estate for your Pets

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Australia is one of several countries with an increasingly high rate of pet ownership. There is a growing global trend to treat pets as a family member. We enjoy caring for our companion pets with access to a multi-billion dollar pet industry selling food, toys and accessories, as well as first rate veterinary care. 

We generally suppose that we will outlive our pets, and in many instances that is true. Unfortunately there is less attention and reflection devoted to the difficult question: “what would happen to my pet if I became incapacitated or died?”

It's not a very nice topic of conversation but it needs to be addressed ... Both animal charities and the legal profession are concerned that too many of us fail to plan for our pets in the event of incapacity and death. 

We recently met Ruth Pollard from the state government agency, NSW Trustee and Guardian as she was about to give a presentation at the NSW Cat Protection Society on the topic of planning ahead for your cats. 

Why you Should Include your Pet in your Will

The consensus at this gathering was that we need to be mindful of our responsibility to pre-plan our affairs so that they also include provision for the future care of any pets who outlive us. 

A common misnomer is that only the rich and famous make wills to include provision for a beloved pet. For example, Majel Barrett-Roddenberry, the widow of Star Trek creator Gene Roddenberry, set up a $4,000,000 trust for her dogs. Although celebrities have been known for their extravagant bequests, more everyday pet owners are starting to realise that it is a wise thing to do, regardless of status and wealth.

We need to keep in mind that under Australian law pets are categorised as property. This means we can’t leave money or property directly to our pets but must instead make arrangements for gifts of money to be paid over to a person or charity to provide for the care and maintenance for our pet. None of us would wish for our beloved pets to be abandoned dumped or end up in a pound because we failed to plan for their future.

There are two areas where we should plan ahead for our pets: in case we lose capacity to make financial and personal decisions while we are alive, and in anticipation of death. Neither are popular topics to think about or plan for.

However without proper planning we are exposing our pets to vulnerability as well as transferring the problem of their future care to our family or society at large. We need to prepare the relevant legal documents which stipulate what our instructions are concerning ourselves, our pets and our financial and legal affairs. 

Each state and territory of Australia has its own laws about what are called ‘enduring powers’. Depending on the state or territory there are either one or two documents which provide for the appointment of a person or trustee organisation to make financial and/or personal decisions in case of incapacity. This decision maker should be trustworthy. 

Ask yourself: would I trust this person or organisation to make decisions about my health, lifestyle, finances and legal affairs and decisions for the care and maintenance of my pet if I was no longer able to do so? 

The other important document is a will which appoints a person or trustee organisation to administer our estate and distribute our assets in accordance with our wishes after death. If we fail to make a will we are said to have died intestate. The intestacy laws in each state and territory of Australia differ slightly but generally make provision for certain relatives to the exclusion of pets. Remember pets are considered property, so it is important for a pet owner to make a will.

Things we can do to provide for our Pets in our Will:

Firstly, include a clause in our will gifting both your pet and a sum of money to a trusted friend or family member. It’s a good idea to link the gift of money to the consumer price index so that the gift maintains its value until the date it’s paid. It’s essential to discuss such a proposal with the person of choice to ensure they’re prepared to take on this role. Also discuss with them the updating of their own will should they also pre-decease your pet.

Secondly there are the legacy programmes offered by a number of animal charities to rehome or foster pets. It is very important to contact the charity beforehand to find out their requirements for such an event. Charities depend on donations: a gift of the pet together with a gift of money linked to the consumer price index which is both sufficient for the maintenance of the pet and the continued good work of the charity are helpful and appreciated.

The third option is euthanasia. If considering euthanasia, canvass this with your executor who is the person you appoint to administer your estate. It is the executor who will arrange for your pet to be euthanased and there are executors who have indicated considerable discomfort at having to carry out such a wish.

And finally there is the pet maintenance trust. To set up a trust you need a person who will act as carer of your pet and a trustee who will look after the trust funds and apply the funds for the care and maintenance of your pet.



There are a number of rules to follow and some basic measures to consider:

• In NSW, the law provides that unless the trust is for charitable purposes it can only last for 80 years. This is fine for dogs and cats but there are some birds and reptiles who live for longer than 80 years.
• Even though the law allows for the establishment of a pet maintenance trust, the law does not compel the trustees to carry out its terms, they must do so willingly. So it is very important to appoint a trustee who will carry out your wishes.
• Ensure there are sufficient assets in the trust to last your pet’s lifetime. Remember care costs will include food or special dietary needs, grooming, toys, any possible travel expenses, veterinary bills and special veterinary care if your pet develops an illness or age-related disorder. 
• If there is any money left in the trust when your pet dies, your will should spell out where it is to go, for example to a charity, friends or family. 
• Some people have been known to establish trusts which provide a home for the life of the carer in which to look after the pet as well as a fund for the pet’s care and maintenance. These should contain water-tight provisions concerning: occupation of the premises; whether or not it can be sold and another purchased in its stead; and who will pay for the maintenance of the property and all outgoings. 
• Pet trusts should also contain provision that the carer take the pet to the vet for regular check-ups and for the vet to provide a report to the trustee confirming the pet is being properly cared for. 

With all of these measures it is important to ask yourself – do I trust the person or organisation I am appointing as my decision maker in the case of incapacity or the person who will administer my estate after my death to ensure my pet is cared for and loved as much I as do.

Sometimes legal formalities take a little time to put into place. What happens if I met with an unexpected accident, was taken to hospital, or died and there was a delay in letting family and friends know? Would anyone know I have a pet in my house in need of attention?

It is important to inform family, friends, neighbours, and even work colleagues what to do about your pet in case of an emergency. It may be up to one or more of these people to do something while the legal formalities are being put in place.

I work in a NSW state government agency where we make wills, administer estates and trusts and look after the affairs of people who have lost capacity. We see the results of what happens when people fail to make provision and staff have the difficult task of finding a solution for this lack of pre-planning.

NSW Trustee and Guardian has created a pet emergency card which can be easily seen in a wallet, alerting any emergency services or others that there is a pet in need of care and who to contact in case of an emergency. 

Also available on the NSW Trustee and Guardian website is a brochure titled “What about me? Your pets and your will” containing information about the points I have raised in this article. 

Now that you know you can plan ahead for your pet contact a solicitor, a public trustee (NSW Trustee and Guardian in NSW or State Trustees in Victoria) or private trustee company and work with them to draw up an enduring power and will to provide for your pet. 

written by Ruth Pollard, August 2019 for Australian Cat Lover (all rights reserved).

Some of Ruth Pollard's cats eagerly waiting for her!

About the writer

Ruth Pollard is Director of Legal & Professional Services at the state government agency NSW Trustee and Guardian. 

Ruth undertook the first animal law course offered in Australia and for a few years was an honorary member of the NSW Law Society’s Young Lawyers Animal Law Committee. 

Ruth has volunteered at her local pound and is now kept busy looking after 8 rescue pets: 2 dogs and 6 cats.



Other References:

The Cat Protection Society of NSW also has a great Fact Sheet about "Planning for your Cat"

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