If you want your pet to be cared for when you're no longer around, you need to include them in your estate plan.
Many Canadians experience the joys of having a pet. In fact, 8.1 million cats and 7.7 million dogs were considered household pets in 2020.
So, it’s not surprising that, when it comes to estate planning, Canadians want to make sure their pets are well cared for after they themselves are gone. However, a recent survey by RBC Royal Trust found that 52 percent of Canadians still don’t have a Will—and that figure jumps to 70 percent for those ages 18–34.
There are steps you can take with your estate plan to make sure your pet is cared for when you’re no longer around. Despite a decision in 2021 by the Court of Appeal of Alberta that referred to animals as sentient beings,1 Canadian estate law in the common law jurisdictions continues to consider pets to be personal property, notes Thomas Grozinger, principal trust specialist at RBC Royal Trust. “Therefore, they do not have the capacity to receive gifts made in Wills by their owners.”
As part of the same movement to improve the legal status of animals, Quebec has also stated that animals are not things but are considered sentient beings and have biological needs. Unfortunately, it appears this does not give animals in Quebec legal standing that allows them to be the recipients of gifts.
One option is to gift your pet to a trusted individual, along with money to enable that beneficiary to care for your pet.
“This may be a simple solution, so long as your beneficiary does not die before your pet or become insolvent or bankrupt, resulting in the gifted money vanishing into the hands of creditors,” explains Grozinger.
What about creating a trust in your Will specifically for your pet? A trust is an arrangement in which a third party holds funds for the benefit of your pet. If you choose this option, there are a few matters you’ll need to consider first. For example, there’s no guarantee the person you assign to be the trustee will honour the arrangement to oversee your pet, since your pet is not in a position to enforce the terms of the trust. As a result, you might want to structure the trust so that it provides for the appointment of a “protector,” whose role is to supervise the trustee.
Grozinger cautions: “If you appoint an individual as trustee, what happens if he or she becomes incapable of doing so—or, worse, dies? Naming an alternate trustee would therefore be important.”
Also, while the common law allows for the creation of a trust for the care of a specific pet, some Canadian common law jurisdictions provide that certain non-charitable purpose trusts (which could include pet trusts) may last for a maximum of only 21 years.2 With cats, turtles and other pets that have the potential to live beyond 21 years, a pet trust may not be suitable.
In Quebec, private trusts could be used to benefit a specific pet; and Quebec law permits private trusts to be perpetual.
Tax considerations should also not be overlooked. Trustees must ensure any tax filings required under Canadian income tax rules are completed each year.
Another option is to check with your local Humane Society for a foster program. For example, the Ottawa Humane Society Pet Stewardship Program allows a pet parent to enter into an agreement in which a search is carried out for a suitable caregiver or steward following the owner’s death.3
The agreement enables owners to provide wishes concerning the level of care for their pet. If the pet is gifted to the Ottawa Humane Society (OHS) in a Will together with the stipulated enrolment fee per the terms of the agreement, then upon the owner’s death the OHS will take custody of the pet and search for an appropriate caregiver. The organization will monitor the pet arrangement and could take back the pet if there are issues with the care being provided.
While ensuring your pet is properly cared for after your death is important, it’s also essential to consider arrangements for your pet should you become incapacitated. In such a case, your Will does not apply.
You may want to include instructions in your enduring or continuing power of attorney for property (known as a Protection Mandate in Quebec), which survives your incapacity and enables your appointed attorney (mandatary in Quebec) to manage your assets and property, including care for your pet.
What happens to your pet if you die unexpectedly or become incapable of caring for your pet? Who will take care of your pet right away? Even though pets are considered an asset of the estate, the reality is they’ll require immediate and ongoing care while your estate is being administered.
“Another tip is to consider keeping a card in your wallet, or in your emergency information on your cell phone, that lists where your pet is located and contact information for a person who can provide immediate assistance,” says Grozinger. “This way, first responders or medical staff can advise your attorney, executor, family or friends that there’s a pet that needs looking after.”
As always, when it comes to arranging for the care of pets as part of your estate plan, it’s important to speak to legal counsel and seek advice related to the laws applicable in your jurisdiction. Involving professionals will help to ensure your beloved pet will be cared for if you become incapable or pass away.
1R v Chen, 2021 ABCA 382 (CanLII) (para. 27)
2 On April 29, 2022, Royal Assent was given to a new Trustee Act in Alberta which provides, in part, that certain non-charitable purpose trusts may exist indefinitely [ss.77(2)]. The act is proclaimed in force on February 1, 2023.
3 The Pet Stewardship Program Agreement of the Ottawa Humane Society also provides for the circumstance where the pet owner becomes incapable of managing his or her affairs as it relates to the pet owner's pet.
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RBC Wealth Management is a business segment of Royal Bank of Canada. Please click the “Legal” link at the bottom of this page for further information on the entities that are member companies of RBC Wealth Management. The content in this publication is provided for general information only and is not intended to provide any advice or endorse/recommend the content contained in the publication.
® / ™ Trademark(s) of Royal Bank of Canada. Used under licence. © Royal Bank of Canada. 2023. All rights reserved.
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