I notice that often when clients want to talk about looking after their pets in their Wills, they start off by saying, "I know this sounds kind of silly but I want to do something in my Will about my pet." I don't think it's silly at all, since those of us with pets feel true affection for them as well as a responsibility to ensure they will not be abandoned should we pass away. This kind of request is very common.
Generally a pet owner's foremost concern is finding a good home for the animal. The second concern is making sure there is enough money to look after the animal, particularly if it is a large animal like a horse.
There are two general approaches to this situation. Both involve choosing a person you trust and providing that person with some money to look after the pet.
In the most common scenario, you would, in your Will, give your pet to a specific person. You would also give that person a sum of money if they receive your pet. If the pet dies before you do, or the person refuses to take the animal, then the person does not get the money. You would leave instructions that the money is to be used for veterinary bills, food, shots, shelter etc. Many pet owners like to include an instruction that the animal not be euthanized unless medically necessary.
The sum of money does not increase if the animal lives longer. It is a one-time payment. The person who receives the money doesn't have to account to anyone for how the money is spent.
The second approach involves giving the pet to a trusted person in the Will, and then setting up a trust. The trust would not take effect until you have passed away as it is created by your Will. Note that this does not mean that you set up a trust for a pet, because that is not legally possible in Canada. You are setting up what is known as a purpose trust. This means it is a trust set up for a specific purpose, i.e. looking after your pet.
When you set up a trust, the money you have specified is not given directly in a lump sum to the person who receives your pet. It is held in a trust by your executor and money is given out to the person who receives your pet on an as-needed basis. Normally the trust would be in place for the lifetime of the animal. When the animal passes away, any money left over would be paid to a beneficairy. Many pet owners will name an animal shelter as the beneficiary.
One of the main reasons that purpose trusts for pets are not used very often is that the sum of money set aside is not usually very large. There are costs associated with setting up and maintaining trusts, which might quickly deplete a small sum of money.
If you have a pet - or several - that you want to look after in the event of your death, talk to your estate planning lawyer to see which solution might be right for you.
Lynne, a question we hear a lot is "How will anyone know that my will is valid if I don't send it away somewhere?" Now, I know that if a lawyer does your will, they'll have it on file, and that there are will registries in some areas. When someone does their own will there are ways to make it known too. Is this something you could speak to here (or in an article for our site)? Thanks.
ReplyDeleteHi Eileen,
ReplyDeleteThanks for your question. You're right, many people worry that their Will can't be found after they pass away. It's a real concern, because an original Will is needed for probate.
Your question is largely concerned with home-made wills, which, as you've said, do not have the advantage of being on file at a lawyer's office.
The first and most important thing a person should do when they make a new Will is tell the executor where the original is going to be kept. It seems like such a simple thing, but when the executor knows where to start, it can save weeks of delays and upset.
If you give anyone a copy of your Will, write across the margin at the top of the first page: THIS IS A COPY. THE ORIGINAL IS KEPT AT ____". That way even if they forget what you told them, it's written down.
One of the first places most executors look for a Will of a deceased person is the bank safe deposit box. If you don't have one, consider getting one to keep your Will safe, as well as your Enduring Power of Attorney.
I've had people comment to me that they don't want to put their Wills in the safe deposit box because they are worried that the bank won't release it to the executor when the time comes. Remember that bank staff are asked frequently to provide Wills to executors. Yes, there are some administrative hoops to jump through to ensure privacy, but bankers are quite used to this transaction. I recommend the bank safe deposit box as a good place to store a Will so that it can be found.
Some people like to carry wallet cards that state where the Will is kept. We provide those to customers at my place of employment and in fact I sent out 10 of them today.
For provinces such as BC that have a Wills registry, home-made Wills can and should be registered.
It's important to be logical about where you keep your Will. If you have a safe at home, that is a logical place for someone to look, so long as you've let someone know the combination.
It's really not a good idea to hide your Will in a safe place that only you know about. I was once involved in a file where a man's Will was discovered shoved into the headboard of his bed weeks after his death. A search of all logical places hadn't turned up a Will and it was only when someone took apart furniture to dispose of it that the Will was found.
In another case, a man hid his Will by rolling it up and squeezing it into an empty aftershave can in his medicine cabinet. If you do something like that, there isn't really any point making a Will since nobody will find it. This one was found completely by accident.
I hope this reply gives people some answers. If you'd like me to expand on it for your site, please let me know.
Lynne