By: Jennifer Katz - Wills and Estates Group

Did you know that nearly 3 in 10 Canadians adopted a pet during the pandemic? Pet ownership in Canada increased significantly in the last three years with over 60% of Canadian households having at least one pet.

The pandemic highlighted the special relationship we have with our pets. Pets provide a range of mental health benefits to their owners. It is not surprising that many Canadians (myself included) have taken comfort in pets as a way to cope with the isolation of the pandemic. Pets are relied upon for companionship, to keep us active, to assist with enduring stressful situations, and to generally improve our quality of life.

Pet owners often consider their pets to be members of their family. Nonetheless, of the millions of pet owners in Canada, less than one-third have made any provision for their pet’s care on their death or incapacity. Of that third, only 7% have made a formal arrangement for their pets in their estate planning documents.

Given the important place pets hold in our hearts, below is some basic information on why it is important to consider your pets during the estate planning process and how to provide for your pet’s care on incapacity or death. In this article, the term “pet” refers to all pets, whether you have one or many.

Pets are not People

In Canada, a pet is considered personal property. Therefore, in your Will, you can gift your pet to a named beneficiary. As long as the beneficiary accepts the gift, this person will become the owner and caregiver of your pet. If your Will does not name a beneficiary, your pet will be dealt with the same way as your other personal property. This could mean your pet ends up in the wrong hands or that your executor will be left to determine how best to allocate them. In Ontario, if you die without a Will, your entire estate—including your pet— will be distributed in accordance with the laws of intestacy set out in the Succession Law Reform Act and you will not have any say in who will receive your pet. 

Choosing a Caregiver

By executing a Will and/or a Power of Attorney for Property, a pet owner can specify what should happen to their pet on death or incapacity. When selecting a caregiver for your pet, consider family or friends who have met—and ideally have cared for—your pet in the past. You may also consider naming an alternate caregiver in case your first choice is unable to take in your pet at the relevant time. Pet ownership is a responsibility. You should discuss your intentions with the caregivers to ensure that:

1. they are willing and able to take on the role,
2. are aware of the amount of responsibility involved in caring for your pet, and
3. understand the wishes you have for your pet’s quality of life.

You may also consider writing out a pet care plan that you can store with your estate planning documents and can be passed on to the caregivers. If you have multiple pets, you should consider whether you would prefer the same household take in all your pets or if different people should inherit different pets. If there is not a suitable person to care for your pet, you may consider looking into other options. Your local pet shelter, pet adoption, or animal rescue organization are all viable alternatives.

Funding for your Pet (and maybe your Caregiver, too!)

Since a pet is considered to be personal property, it does not have the legal capacity to receive a gift from their owner in the same way that a person does. Therefore, you cannot provide a cash gift or a share of your estate to be paid to your pet. That said, it is still possible to set aside a sum of money to alleviate the financial burden associated with pet ownership for the caregiver to take care of your pet.

In considering how much money to set aside for your pet’s care, think of the amount in the context of the value of your entire estate and the beneficiaries you intend to benefit. Also consider the level of care and the lifestyle you expect the caregiver to provide for your pet. You should set aside enough money to cover the costs of caring for your pet while taking into consideration:

• your pet’s health
• whether your pet’s breed is prone to any specific health issues
• the annual costs currently incurred in caring for your pets
• the cost of care increasing as your pet ages (similar to humans)

There are various types of provisions that can be incorporated into your Will to provide for the funding for your pet’s care in the event of your death. For example, you may consider leaving a legacy to your pet’s caregiver and include language expressing that the gift is a token of appreciation for welcoming and caring for your pet. Note that by leaving a legacy to the caregiver directly, there are technically no restrictions on how the caregiver can use the money and no obligation for the money to be used towards your pet’s care.

It is also possible to establish a formal trust in your Will for your pet for a period of up to 21 years. This time restriction is unlikely to be an issue, given the lifespan of most pets. A third option is to establish a trust for the caregiver of your pet in your Will that terminates on the death of your pet. There are specific formalities required to establish such trusts and it is important to discuss your wishes with a qualified estate planning lawyer to ensure that your intentions are validly incorporated in your estate planning documents.

In the event that you are incapable of caring for your pet, consider documenting your wishes for your pet’s care (and for any funding in relation to such care) in your Power of Attorney for Property in order to guide your attorney in this situation.

Planning ahead by including your pet in your estate plan ensures that you have a say in who will be caring for them and provides peace of mind that your pet will be well-cared for in the unfortunate situation that you are unable to care for them. To ensure that your wishes are well-documented, it is important to consult a qualified estate planning lawyer to assist with your estate planning. Should you wish to discuss your estate planning in greater detail, contact Jennifer Katz at jkatz@mindengross.com or any lawyer in our Wills and Estates Group.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with legal advisors.