Saturday, January 26, 2008
At one time, California was a leader in the pet trust field when it passed Probate Code § 15212 providing that "[a] trust for the care of a designated domestic or pet animal may be performed by the trustee for the life of the animal, whether or not there is a beneficiary who can seek enforcement or termination of the trust and whether or not the terms of the trust contemplate a longer duration."
Although this statute authorizes trusts for the benefit of pets, it does not make them enforceable. In other words, pet trusts are merely honorary -- the trustee may carry out the trust if he or she wants to but is not obligated to do so. Almost all modern pet trust statutes, as well as the UPC and UTC, make them enforceable.
The California legislature is now considering SB 685 which would modernize its pet trust statute and make them enforceable. Here is an excerpt from the Legislative Counsel's Digest of the bill:
This bill would repeal the provisions regarding domestic or pet animal trusts and would provide instead that a trust for the care of a designated domestic or pet animal is for a lawful noncharitable purpose and terminates when no living animal on the date of the trustor's death is covered by the trust, unless otherwise provided in the trust and subject to certain requirements. The bill would require a court to liberally construe a pet trust to bring it within the bill's provisions, to presume against an interpretation that would render the disposition a mere request or an attempt to honor the pet, and to carry out the general intent of the trust. The bill would provide an order of disposition of trust property upon termination of the trust and would provide authority for the court to name a trustee and to transfer trust property, as specified. This bill would permit a person interested in the welfare of the pet animal or any nonprofit charitable organization whose principal activity is the care of animals to apply to the court for appointment as trustee or for removal of a trustee. The bill would provide a process for an accounting of the trust, to be waived if the value of the pet trust assets do not exceed $5,000. The bill would require termination of a trust for the care of a covered domestic or pet animal that has a life span of 21 years of age or greater when that animal dies.