In Australia pets cannot own property, because pets are themselves regarded as property.
This means that – unlike children – there are no automatic laws relating to the care and custody of our beloved pets if we die or become incapacitated.
Whilst the rules around child custody are clear, it’s not the same for pets. Pets aren’t mentioned in any succession or family legislation at all and it is left to the Courts to decide who gets the family pet.
If you become incapacitated or die, what will happen to your pets?
Most pets are dependent on humans for food and shelter, and are unable to look after themselves. It is cruel and illegal to release your pet into the wild to fend for itself, and there may be environmental concerns even if it could survive. As a loving and responsible pet-owner you should include the future well-being of your surviving pets in your plan.
Genders & Partners is the oldest law firm in South Australia, and we have the knowledge, experience and sensitivity to ensure that the right provisions are made for the ongoing care of your pets if you should outlive them or lose the ability to care for them.
If you die or get carried off to hospital suddenly, your pet might be enclosed in a yard, a cage or inside the house. Your family has enough to deal with getting to grips with your illness or death, let alone worrying about a house full of pets. Will they even remember that you have a pet? Probably not for several days, if at all. We suggest setting up a South Australian Pet Trust, as this is a legal document which covers the ongoing care of domestic animals in specific circumstances, such as in the event of your death or incapacity. It names new caregivers or requests that trustees search for new homes for your pets. A trustee is then legally authorised to carry out your wishes from the day of your death or incapacity. A Pet Trust in South Australia differs from a Will, which may take weeks or months to come into effect, as it may require a Court process known as Probate.
Senior lawyer specialising in estate planning and Wills in Adelaide.
Rod Genders from Genders and Partners, the oldest law firm in South Australia, says that state law does not permit animals to be direct beneficiaries of a Will, as the law regards the animals themselves as property.
However, caring pet owners can leave money for their pets in pet trusts with provisions for how it is to be spent on the pet.
As our population ages and fewer couples have children, there has been an attitude shift where many people have come to view their animals less as pets and more as members of the family.
When we die, we will leave behind us a lot of things that someone else will have to sort-out. The administration of our deceased estate will include providing for our loved-ones, and dealing with our assets and debts. A carefully drawn Will as part of an integrated estate plan will greatly simplify the process.
Most of us would also want to make some sort of arrangement for the care and accommodation of our family pets. Yet for some reason most people never turn their attention to this issue.
Maybe it’s just too sad to think of parting from our beloved furry companion, or perhaps it’s just too hard to know what to do.
Some people try to do the right thing by their pets, but are ineffective in how they do it. They might make a half-hearted effort to extract promises from family or friends that their animals will be given homes if they die. But those promises are not binding contractual agreements. Circumstances and intentions may change. The cost of properly caring for a pet needs to be taken into account. It is a sad reality that animal shelters are overflowing with discarded pets.
Unfortunately, it’s not as easy as just leaving money in our Wills in our pet’s name, but there are ways to provide financially for our pet’s care. In many jurisdictions around the world, including Australia, pets are not allowed to be named as beneficiaries in Wills in Adelaide because only people and organisations can be named.
However we can leave money for a pet through a trust. We can specify who will look after the pet, who will make the decisions about the pet’s care and how much money is spent on the pet’s maintenance and healthcare.