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Estate Planning: Remember Your Pets For When You Are Gone or Cannot Make Your Own Decisions!


Estate Planning: Remember Your Pets For When You Are Gone or Cannot Make Your Own Decisions!

"The greatness of a nation and its moral progress can be judged by the way its animals are treated." (Mahatma Gandhi)

For many of us our pets are a central part of our lives, our much loved "fur babies", our companions, exercise partners, even therapists through the hard times.

In South Africa law, some protection is provided to animals under the Animal Protection Act of 1962. However, nothing is specified in the Act regarding what happens to your pets when you die, and many people don't even consider this. As is the case in most other countries, pets are regarded as property in South Africa. This means pets cannot be named as beneficiaries in your will. But it does not mean you cannot make provision for your pet in your will.

But what will happen to them after we die? Or if we lose the ability to make the decisions necessary for their welfare?

Let's look at a few ways you can avoid your pets being dropped off at an animal shelter.

1.           A "Living Will for Pets" - For when you no longer can make your own decisions.

In the "when you are gone" section below we will discuss options that only apply after your death, but in contrast a "Living Will" applies when you are still alive but incapacitated, and no longer able to make your own decisions.

Thus, your own personal "Living Will" or "Advance Medical Care Directive" sets out what medical treatment you consent to receiving when you are no longer able to speak for yourself.

Similarly, you may want to do something like that for your pets, setting out what is to happen to them when you are no longer able to make such decisions yourself. You could leave specific care instructions (including perhaps veterinary care instructions and authority for euthanasia in specific circumstances) or you could appoint a trusted heir or animal welfare organisation to make those decisions for you. Note that you cannot leave money or assets to anyone in a living will - bequests can only be made in your actual will.

2.           Planning for when you are gone.

2.1    What happens when you do no estate planning for your pets.

If you do not make any specific provisions for your beloved pets, their fate is left to chance and could be a grim one. When you die for example, the executor of your estate will have no option but to hand pets over to your heirs as "property". And if your heirs are unable or unwilling to give them a good home and have no guidance from you as to what your wishes are, your beloved pets could end up needlessly euthanised or in a shelter.

Just as children can be included in your Will, so can your pets. There is no law prohibiting this, nor is there any law that prohibits pets from being beneficiaries of your Will. In the event of your death, you will need to consider what will happen to your pets, if they outlive you. Who will take care of them?

2.2           Three planned alternatives:

2.2.1    A clause in your will: As "property", your pets cannot inherit from you, but you can include a clause in your will specifying who will inherit them and a bequest to cover their care. Make sure your chosen heir is on board with your plan!

When choosing someone to inherit your pets, they need to be willing and have the ability and space to look after them properly. The new owner may have to comply with relevant homeowner legislation depending on whether they live in a complex or a stand-alone home. If they are renting their property, their landlord may not allow tenants to keep pets. This clause may need to be regularly updated in your Will.

If you have more than one pet, you should also decide if all your pets should go to one person, or if they should be given to different individuals. The advantage of leaving your pet to a specific person in your will is that it is formalized, and the executor of the estate must ensure that your pet is given to the named person. In most cases, this would be a good option. However, there is no way in which you can assure that the money given to take care of the pet will be used for that purpose and it cannot be enforced.

2.2.2    A directive - in your "important information" file, or in a separate letter of wishes: In addition to your will, you should always leave your executor and heirs a comprehensive file with instructions for your pet's care, including information about dietary needs, preferred veterinarian. Alternatively, you could set that all out in a separate "letter of wishes". These directions aren't legally binding on anyone, but they do provide guidance to those winding up your affairs as to your wishes.

2.2.3    A testamentary trust: For maximum control and security, consider a testamentary trust. This involves appointing a trustee to manage funds dedicated to your pet's care, ensuring their needs are met throughout their life. This option is more complex and requires legal assistance, but it offers the best protection for your furry friend. You can also appoint a separate guardian to provide daily care.

The guardian and the trustee should ideally be different people to avoid a potential conflict of interest. The ideal trustee would be good with finances and care about pets. The ideal guardian will be someone who loves pets, lives somewhere where your pet will be happy, and has time available to spend with your pet.

This Trust is no different from any other Trust Fund set up after a person's death. Although you will not be able to cede your assets directly to your pet, you will be able to surrender some or all your assets to the Trust Fund. The Trustees will then ensure that sufficient money is paid to the caregiver to take care of your pet's food, grooming, medical care, and any other specific needs that it may have during the rest of its life.

If you would like specific instructions and guidance about your pet to be given to the guardian, you can write a letter that accompanies your will, which can be given to the guardian. The letter will not be legally enforceable but will provide the details that cannot be contained in the will.

Remember to plan for the interim care of your pet before your estate is finalised if you choose to follow this route.

What Happens to the Pet Trust Fund if the Pet Dies?

You can nominate a beneficiary in a case like this to either continue receiving money from the Trust Fund or to have the Trust dissolved and a lump sum paid out. The beneficiary doesn't necessarily have to be an individual either. It can be an animal shelter, such as the SPCA, or another charity of your choosing.

3.           Further considerations

There is the age-old adage that says, "the only constant is change". Proper planning will therefore require regular updates to your will. For example, when a pet dies, or if you get an additional pet, these changes must be made. You should also consider naming an alternative guardian, trustee, or heir for your pet in case the chosen individuals are no longer available to accept the responsibility.

When calculating the amount of money that would be required to take care of your pet, you should consider the following:

-             how old your pet might become,

-             the normal monthly cost of your pet's food,

-             and other needs, such as pet insurance, grooming, annual veterinary costs as well as potentially unexpected veterinary costs, and inflation.

If you do not know anyone who can take care of your pet, you can consider private animal sanctuaries and rescue organisations or the SPCA and name them in your will instead of an individual. However, you must investigate this and discuss it with them to ensure that it would be a viable option.

The best way to protect your pet when you are no longer there to do it, is to plan properly. So, act today to ensure your furry family members are cared for, loved, and cherished even when you're gone. It's a gift of love and peace of mind for both you and your beloved companions...

Author Jooste Heswick Attorneys / Lawdotnews / Dotsure / Trudie Prinsloo (Legalvet Services)
Published 12 Jan 2024 / Views -
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