How to Include Pets in Your Will?

As a devoted pet owner, we all have a common understanding of the profound bond we share with our furry companion. Pets are more than animals, they are cherished family members who provide unwavering companionship and emotional support. Yet, while we prioritize their well-being during our lifetimes, many overlook a critical responsibility: properly including pets in our Ontario will through proper wills and estate planning after we are gone. In Canada, particularly in provinces like Ontario, pets are legally classified as property, creating unique challenges in Ontario estate planning. When making a will, without deliberate legal arrangements, your beloved pet could face an uncertain future, such as rehoming through shelters, not receiving proper vet care, or disputes among family members.

This blog post provides a comprehensive, legally sound approach to incorporating your pet into your estate plan, ensuring their care aligns with your wishes.

Understanding the Legal Status of Pets in Canada:

Under Canadian law, pets are considered personal property, akin to a vehicle or piece of jewelry. In Ontario, this principle was reaffirmed in Coates v. Dickson, 2021 ONSC 992, where the court ruled that a dog named Rocco Jr. formed part of his deceased owner’s estate, emphasizing that pets remain “indivisible chattels.” This classification means after the Ontario probate process has been completed and the appropraite individual trustee has been appointed, the trustee has a duty to recognize that pets cannot inherit assets directly, nor can they be beneficiaries of a trust unless structured with human oversight.

However, this legal framework does not prevent thoughtful planning. Instead, when writing a will in Ontario, Canada, necessitating strategic solutions to ensure your pet’s care is both enforceable and sustainable is highly important. Below, we outline actionable steps to secure their future.

Estate Planning Ontario - Key Strategies for Including Pets:

Designate a Pet Guardian in Your Will:

The cornerstone of pet estate planning is appointing a trusted guardian. This individual will assume responsibility for your pet’s daily care, much like a guardian for a minor child or an individual who lacks the mental capacity to make their own sound decisions.

Critical Considerations:

• Choose Wisely: Select someone who possesses a comprehensive understanding of the animal’s specific care requirements, including but not limited to dietary limitations, medical background, and behavioural patterns. Ensure the individual is willing to be committed for the duration of your pet’s life.

• Formalize Backup Plans: In the event that your primary guardian is unable or unwilling to fulfill their responsibilities, establish contingency plans by designating an alternate guardian to ensure continued care. This safeguards against unforeseen circumstances and provides clarity for all parties involved.

• Legal Precision: Consult with our estate lawyer in Scarborough, Ontario to incorporate properly drafted provisions within your will.

Provide Financial Support Through a Conditional Cash Legacy Within your Will:

Although animals cannot directly inherit assets under legal frameworks, a valid alternative is to allocate funds through a testamentary instrument to a designated caregiver, expressly intended to offset the financial responsibilities associated with your pet's care. This monetary bequest, structured within your Ontario estate plan, ensures the provision of comprehensive care and maintenance, including but not limited to: proper nourishment; veterinary services; grooming; and other essential expenses. While legally safeguarding your pet's welfare in accordance with applicable trust or estate provisions, this will properly mitigate undue financial burden on the appointed guardian.

Structuring the Gift:

• Tie Funds to Responsibility: With the appointed guardian’s receipt of funds contingent upon their formal acceptance of custody responsibilities for your pet, our Scarborough estate lawyer will make sure that the legacy be structured as a conditional bequest.

• Estimate Realistic Costs: Calculate the gift based on your pet’s life expectancy and current expenses.

• Mitigate Risks: Our recommendation is to always select a trustworthy individual who will competently take on the role of a caregiver and not abuse or misuse funds allocated to your pet.

Enforceable, Long-Term Care - Establish a Pet Trust

For even greater control, consider a pet trust. Although Canadian common law limits non-charitable purpose trusts to TWENTY-ONE (21) years (potentially inadequate for long-lived pets), the Province of Ontario allows trusts structured to benefit a human caretaker, with conditions tied to your pet’s care.

Legal Requirements for a Valid Pet Trust:

• Human Beneficiary: The estate pet trust shall designate an individual or entity that will be responsible for ensuring compliance with the trust's provisions. This designation is required to uphold the enforceability and integrity of the trust's terms.

• Clear Instructions: To ensure adherence to the grantor’s directives, it is important to make sure that the trust instrument explicitly outline care requirements, including dietary provisions and designated veterinary professionals. Additionally, strictly limiting fund utilization to purposes aligned with the grantor’s intent and fiduciary obligations, make sure to delineate authorized expenditures from trust assets.

• Termination Date: The trust shall terminate upon the death of the beneficiary animal, with any residual assets allocated to a designated remainder beneficiary (e.g., a specified individual or charitable organization). Understanding Ontario estate law, we recognize that such distribution will comply with the fiduciary obligations and stipulations enumerated within the trust agreement.

• Separate Roles: In the alternative, you may also choose to have the trust instrument formally designate a trustee to administer financial assets and an independent guardian to oversee daily custodial responsibilities, ensuring strict separation of fiduciary roles to mitigate conflicts of interest.

Partner with Animal Welfare Organizations:

If personal guardians are unavailable, organizations like the KW Humane Society or the Ontario SPCA may offer safety nets for a dog adoption or other animals. For a fee, these groups may assume custody, place your pet in foster care, and find a permanent home while monitoring their welfare.

Plan for Incapacity with a Power of Attorney:

As you are already aware, your will only takes effect upon death. To ensure continuity of care during incapacity, specify your pet’s needs in an Enduring Power of Attorney for Property. Including pet care, this document authorizes your appointed attorney to manage assets if you become unable to do so.

Additional Legal and Practical Considerations:

• Tax Implications: As trusts may be obligated to file annual income tax returns, it may be recommended to necessitate prudent consultation with a qualified accountant to ensure optimal structuring of trust assets in compliance with applicable fiduciary obligations.

• Emergency Preparedness: Maintain a readily accessible wallet card or digital document detailing the animal’s current location, prescribed care protocols, and designated guardian contact information to ensure prompt coordination with emergency personnel.

• Detailed Care Manual: Provide your guardian with formal documentation delineating the animal’s dietary regimen, comprehensive medical history, and behavioural proclivities to ensure adherence to prescribed care standards.

Why Professional Legal Guidance is Non-Negotiable:

While DIY will kits offer cost-efficiency, pet trusts and intricate estate plans require vast understanding of Ontario estate laws and meticulous legal precision. Our Scarborough estate will attorney can ensure you that we comply with jurisdictional statutes, mitigate fiduciary liabilities, implement structurally sound testamentary frameworks, draft clauses compliant with provincial laws, navigate tax complexities and trust termination rules; and advise hybrid solutions, such as combining a cash legacy with a trust.

As pet owners, we share a deep bond with our animals, and planning for their care after our passing is an important step in ensuring their continued well-being. By taking the time to make thoughtful provisions in your will, you can provide peace of mind, knowing that your pet will be well cared for and loved long after you’re gone. If you are unsure where to begin, consider consulting with our estate planning lawyer who can guide you through the process and help you establish a comprehensive plan for your pet’s future.

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Red Booth Law

Estate Litigation | Probate | Wills & Trusts

Scarborough | Bowmanville | 416 953 0040 | info@redboothlaw.com

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NOTE: It's important to know that laws and regulations are subject to change, and the information provided in the article may not reflect the most up-to-date legal requirements. Before making any decisions or taking any action, it's essential to consult with a legal professional to ensure that you have the most current and accurate information.

The content provided on this website is for informational purposes only and should not be considered as professional legal advice. If you have specific questions or concerns about your situation, it's always best to consult with our Ontario estate planning and will lawyer in Scarborough who can provide personalized guidance.