09/17/2013 12:26 EDT | Updated 11/17/2013 05:12 EST

Your Estate Planning Should Include Pets

When planning your estate, it is of great importance that you ensure that all of your assets have been considered, especially when making specific provisions for the passing of individual portions of your estate. It is also essential to consider those close to you, whether they be human or not.

It is particularly important to give consideration to your living assets -- your pets. If these faithful companions survive their owners, their future care will be dependent upon the last expressed wishes of their masters. For many, the notion of pets being left with large estates upon the passing of their owners prompts recollection of the sensationalism attributed to celebrity pets being left multi-million dollar estates, including the bequest of $12 million that Leona Helmsley left her Maltese, Trouble, and the future inheritance contemplated in Oprah Winfrey's will which provides for a $30 million fortune to fund the future care of her dogs.

While these news-worthy stories appear to question such generous endowments to beloved animals, it is important for those with pets, even those with more modest estates, to provide for them in some manner while planning estates or drafting wills.

Consideration given to pets is especially prevalent for the elderly, who at a later stage in life, may have an especially close attachment to their faithful companions. Additionally, at such a late stage in life, the death of a single or widowed senior can have especially serious ramifications for pets.

For the vast majority of us, pets are simply another reason to ensure that estate planning is considered well in advance. Often, pets are simply given away as a gift in a will to the intended future caregiver, possibly along with a monetary gift which is granted with the understanding that the funds are to be considered compensation for the future costs of care of the pet in the hands of the recipient.

In Canada, pets are unable to be named as a beneficiary of an estate directly; therefore, if there are concerns regarding whether a future caregiver will properly maintain a testator's pet, then a trust can be established in order to ensure the pet's proper maintenance.

With no specific legislation in Ontario, it is of paramount importance that pet owners openly communicate their last wishes for their pets with friends and relatives and consider including precatory words in a will, expressing a testator's non-binding hopes and desires with regards to the who and how of the maintenance of their pets. While such clauses have no true legal force, simply due to their insertion in a will, they often carry great weight and act as a formal direction to executors of a will and future caregivers. Precatory wording can be particularly effective if the included notions have been discussed with relatives and friends ahead of time.

Several other aspects of estate planning generally must be contemplated when consideration is given to the care of your pet after your own passing, including that courts will not uphold provisions for pets that contravene trust and estate's law generally, and will strike clauses that raise public policy concerns.

Overall, it must be remembered that as pets are considered the property of their owners, if a deceased dies intestate, then their pets will be treated as an asset of the estate, where their fate will be left entirely in the hands of the government to determine. Those of us with specific wishes for the future of our furry companions would be wise to confer with family and friends in advance and plan for the future care of our pets.

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.