What to do with pets when the owner dies

Your simple, clear and easy-to-use guide on how to ensure your pets are cared for, after you die.

For many of us pet owners, we often don’t like to think about what would happen to our beloved furry, feathered or scaled friends when we die. However, this is an inevitable occurrence and is therefore something we need to consider and prepare for if we are to properly care for them.

Who will feed them? Who will look after them? Who will love them?

From gifts to trusts, this article outlines the options available and the relevant practical considerations to help you continue to look after your pet when you are no longer here.

12 million UK households own a pet with 51 million pets being owned.

We spend much of our time, love and money on our pets.

Whether it be on grooming, pet insurance, healthcare or even treats because they have, indeed, been a “good boy”, we don’t hold back.

We do this because we love them.

They are part of the family and in many cases, we couldn’t imagine our lives without them. And if they could talk, they would say the same thing.

So, it is important that, on our deaths, we ensure our pets are cared for because they can be grieving just as much as any human would.

This article explores the options available to us in doing so.

However, our personal views and our pet’s needs differ in each situation, so this article also outlines the practical considerations of each option, to give you a better understanding of which would suit you and your pet best.

The legal definition of ‘pet’

For the purposes of Will-writing, a “pet” is usually considered a personal chattel (or personal property) unless they are used for working purposes, such as a sheep dog on a farm or professionally-bred animals.

In the latter case, the animal would be considered a business asset.

It has been legally acknowledged that a testamentary gift providing for the maintenance of an animal is indeed a valid gift.

However, the person making the Will (i.e. the ‘testator’) must decide whether they want to make a gift providing for the care of their current pet(s) or for the care of any of their pets that are alive when they die.

If you wish to make a gift of a particular animal, then your Will should be drafted to reflect this by clearly identifying the relevant pet.

This can be done by simply referring to the animal by its name.

Whether it be “my dog Ben”, “my cat Purrudence” or “my tortoise Voldetort”, this is enough to provide clear identification of your pet.

It is essential to clearly identify your pet in this way, regardless of how you decide to care for your pet in your Will.

However, it is important to remember that any specific gift of a particular pet will adeem (i.e. fail) if you no longer own the pet on your death.

Without an express statement to the contrary, the gift may not apply to any other animal you own on death.

So, say for instance, you make a specific gift of ‘Voldetort’ in your Will, but ‘Voldetort’ unfortunately passes and you replace him with another tortoise (say, ‘Sheldon’), the gift of ‘Voldetort’ will fail and will not cover ‘Sheldon’.

The way to get around this is by stating in your Will that any specific gift includes a substitute pet; for example, “any other pet I own at my death”.

And just like that, ‘Sheldon’ is saved.

Happy Voldetort

So now we understand what the legal definition of a “pet” is in terms of Wills, let’s look at the options available on how to look after our pets in our Wills.

The options available

1. Absolute gift to a named beneficiary

You may have someone in mind who you wish to become your pet’s owner on your death.

In such circumstances, you may, in your Will, give your animal and a cash sum to a named beneficiary.

However, there a number of things you will need to consider.

Firstly, the “who”.

Who is able and willing to look after your animal?

It could be a friend, relative or someone you know who is familiar with your pet or has similar pets of their own.

Secondly, your pet’s circumstances and needs.

Think about your pet’s age and life expectancy. If they are likely to live for a long time after your death, then a young beneficiary may be more appropriate.

This would help prevent your animal from needing to be gifted to successive beneficiaries after your death, as such a disruption would likely inhibit their welfare.

Thirdly, the finance and resources required.

We all know that pets are not to be considered lightly when it comes to financing them.

Insurance, food, vet bills, healthcare… someone will have to foot the bill when they take on the care of your pet.

You can provide for and make financial provision for your pet’s care in your Will.

Again, you should consider the age and life expectancy of your pet in making such financial provision as these will change depending on your pet’s circumstances and needs.

For example, Voldetort, as a tortoise, would normally live longer than Ben the dog, so his care costs could be much greater.

It is often useful to accompany your Will with a ‘letter of wishes’.

A letter of wishes is not legally binding, but it is a useful means of providing guidance for the people dealing with your estate and/or any trusts that are to be set up after you die.

A letter of wishes serves to capture your guidance on specific matters that require discretion.

Here, the letter can be used to provide guidance on who is to care for your pet and the type of care needed.

You can also provide for a substitute beneficiary in case your original choice is unable or unwilling to take on the responsibility.

You can even provide for your cash gift to be index-linked to keep it in line with inflation.

2. Gift to executors together with a letter of wishes

This is a useful option if you want to provide guidance on how to care for your pet after your death, but you do not want to nominate a particular individual, you do not know who to choose, or you know who you would like to choose, but do not know a suitable substitute person.

You can provide for the pet animal to be dealt with by your executors in accordance with your letter of wishes.

You may leave the animal and a cash sum to the executors with a letter of wishes which sets out how the executors are to deal with both.

In the letter, you should:

•  Name the person to look after the animal, using the cash sum.

•  Provide details about your pet animal, such as its age, breed and behaviour.

•  Provide details about its care needs, such as feeding requirements and veterinary care.

•  Outline what the executors should do in the instance that nobody is prepared to accept the responsibility of looking after the animal.

The benefit of this option over the first is that there is no possibility of a lapse of the gift (meaning that as there is no named recipient, the gift cannot fail for the reason that a named recipient dies).

Where there is a need for choosing a substitute recipient to care for the animal, the executors will be responsible for making appropriate arrangements.

3. Gift to an animal welfare charity

You may wish instead that your pet animal be cared for by people with experience and a passion for animal care.

In this case, you may leave your animal and a cash sum to an animal welfare charity accompanied by a request that the charity finds a suitable home for your pet.

The usual or commonly-chosen ones include ‘Dogs Trust’ (which has a ‘Canine Care Card’), the ‘RSPCA’ (which has a ‘Home For Life Plan’) or the Cat’s Protection League (which has a ‘Cat Guardian’ service‘).

Some charities may ask you to register your pet with them if you wish to leave your pet to them on your death.

This enables your executors to know which pets are to be gifted to which charities and also gives you an opportunity to provide details of the pet’s care needs in a letter of wishes.

The charity’s staff and volunteers take care of your pet animal until they are able to find a suitable permanent new home for them.

You may want someone to look after your pet after your death, but before the charity takes your pet.

This may be someone who your pet animal is familiar with, so it reduces their stress during the transfer stage.

Alternatively, you may wish for the gift to the animal welfare charity to be a substitute gift if you have someone particular in mind to look after your pet.

However, it is important to note that, there are no obligations or conditions for the charity to satisfy.

So, there is no guarantee that the cash will be specifically used for your pet’s welfare or care, or that the charity will not put down an animal or keep it in a welfare home rather than rehoming them.

4. Trust limited to 21 years for the pet’s care

Under English law, it is generally not permissible to allow for a non-charitable trust for purposes because there are no beneficiaries who can enforce them, say, if a trustee does not act in accordance with his obligations.

However, there are exceptions, one being trusts for the purpose of providing maintenance and care for pet animals.

However, to be valid, the trust (known as a ‘trust of imperfect obligation’) must abide by the rule against inalienability (i.e. it cannot last indefinitely).

As such, the trust must be limited to a period of 21 years, starting after your death.

Therefore, this option is not appropriate if your pet is likely to survive a period of more than 21 years after your death.

If you do wish to choose this option, then you should use a letter of wishes to provide full details of your wishes regarding the animal’s care as well as what is to happen if nobody is willing or able to care for your pet.

However, as you are creating a trust, there are further practical considerations which will need to be considered (such as who should be the trustees, their duties and obligations, their replacements and how expenses are to be met) and on which you may need further advice.

5. Discretionary trust of the residuary estate

A discretionary trust is one which is set up for the benefit of one or more beneficiaries, but where the trustee is given full discretion as to when and what funds are given to the beneficiaries.

Your ‘residuary estate’ is what assets, funds and property you have remaining on your death, after all duties, debts, obligations and expenses (such as mortgages, tax liabilities and funeral and other testamentary expenses) have been paid.

You can include your pet in a discretionary trust of your residuary estate with a letter of wishes.

This gives the trustees flexibility to decide who should receive and care for your pet.

It works similarly to option 2 above, but the difference is that the executors will have access to additional funds in the residuary estate

Equally, as the trust here is not for the sole purpose of caring for your pet, the issues concerning the 21-year rule and potential problems with trustee expenses and replacements should not arise.

To have your pets form part of your residuary estate, you need to ensure they are excluded from any gifts in your Will.

6. Euthanasia

This is often viewed as a controversial or taboo option.

I have had clients in the past who have provided that they wish for their pet to be put down and buried or cremated with them.

People often view this as cruel or inhumane, as you are choosing to put down an otherwise healthy animal.

Their reasoning is that they have had their pet for a number of years and do not know anyone, or feel there is anyone, capable of loving or meeting their pet’s needs.

They often feel their pet will be too stressed or distraught to carry on without their owner.

However, there have been instances where campaigners or animal welfare charities have overheard of such wishes and have gotten involved to ensure that the pet is looked after and rehomed.

This is permitted as the main objective is to promote the animal’s welfare and, if this can be achieved through suitable rehoming, then this may of course be a better alternative.

The takeaway

You should hopefully see that there are several options available to you to ensure that your pet is cared for, after your death.

Hopefully you will have more understanding and clarity as to which will suit your needs, and your pet’s needs, appropriately, and help you make a decision accordingly.

You will also see that there are other aspects to consider and draft, such as a letter of wishes or a trust.

This may be overwhelming to consider, in addition to the need to consider drafting your Will itself.

For a free, no obligation chat, please call Edward Richings on 07368 526296 or email edward@adewills.co.uk to get started. Or download our free Will Information Guide for more information on making a Will.

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