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  • Writer's pictureEssentia Law

Can My Pets Be In My Will?

Sometimes, it’s our beloved pets that we have to worry about should we predecease them. Fifty percent of Canadians own a pet and, in 2013, we spent $6.5 billion on them, so it's clear that we care about what might happen to them as much as any other member of our family. One of the best ways to assure your pet’s continued love and care is to include them in your will.

Historically, pets have been viewed as property but this is slowly changing as we become more emotional about the future of our pets and how they will be cared for when we’re gone. In fact, Quebec legislation no longer treats animals as property but rather as “sentient” beings, which means they are recognized as having feelings and emotions. But the law in BC hasn’t quite advanced to that stage, and pets are still recognized as property here.

Whichever province you live in, the important thing is to make sure you have a plan for your pet, so your cherished companions don’t end up in a crowded shelter!

In BC, there are two ways to include a pet in your estate plan.

Leave Your Chosen Caregiver a Gift

The first option is to simply identify a caregiver for your pet, leaving the caregiver a sum of money as a gift to help with costs involved in your pet's care (veterinary costs, food, competitions, etc.). Keep in mind that, because the money is considered a gift, the caregiver would not have to account to anyone for how the money is spent. But, the caregiver wouldn’t be entitled to the gift if the pet dies before you or if the caregiver chooses not to take on the responsibility of caring for the pet.

Set Up a Purpose Trust

A second option is giving the pet to a trusted person and then setting up a trust for the pet’s care. The “trust” is not technically for the benefit of your pet since pets are not legally recognized under trust law in Canada. Rather, the trust would be set up as a “purpose trust”, which means it is a trust set up for a specific purpose – in this case, caring for your pet. A trustee would control the funds and make payments to the caregiver on an as-needed basis. The trust would remain in place for the pet’s lifetime. But, if you have a giant turtle or a parrot, you’ll need to think longer term, because the term of the trust can’t exceed 21 years. Any money left over once the pet dies would be paid to a beneficiary, which could be an animal shelter or other charity of your choosing.

I don’t often recommend creating a “purpose trust” for a pet because the costs associated with setting up and maintaining this sort of trust can quickly deplete the sum of money set aside to care for your furry, feathered, or scale-covered family member. It’s often more simple, and cost-effective, to choose a trusted person to take your beloved pet and gift them enough money to adequately care for the pet. Of course, having a conversation about their care prior to your passing is strongly recommended.

Another Option: The SPCA's Pet Survivor Program

If you don’t have someone in mind to take your pet after you pass, the SPCA has a Pet Survivor Care Program. They will actually take custody of your pet and arrange for a new adoptive home for them. They have two care programs, a Silver and a Gold plan, both of which offer pre-planning and after death complete care, including temporary foster care in the event of hospitalization or temporary incapacity.

Final Thoughts

Some people love their pets more than some family members but I must warn you that disinheriting a family member in favour of your pet would likely not succeed in BC, due to the Wills variation provisions in the Wills, Estates and Succession Act (“WESA”). Just something to keep in mind and discuss with your lawyer when setting up your estate plan!

Caring for your pet is as important as all the other considerations in your estate planning. If you have a pet and you’re wondering the best way to care for them after you’ve passed away, have a conversation with your estate planning lawyer to make sure your wishes are documented correctly.

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