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Pet Trust Law, Effective January 1, 2009

Section 15212 of the Probate Code

By Drorit Bick, Law Clerk to Frieda Gordon, Esq.

In the past, pet trusts have been plagued with problems of enforcement due to the fact that they did not require naming a beneficiary or other interested party who could seek enforcement of or compliance with the trust. Morever, there were no formal procedures in place to ensure any accountability of the trustee, either for the funds in the trust or for the welfare of the animal. As a result, many such pet trusts were rendered merely a request or an empty attempt to honor the animal.

However, effective January 1, 2009, a new law comes into effect which creates a mechanism by which a trustee is held accountable so that the intent of the trust can be achieved. The law requires that a Court liberally construe an animal trust and presume against an interpretation which is merely precatory or honorary in nature, and which would render the trust ineffective. Furthermore, the law provides the Court with authority to name a trustee, to transfer trust property as specified in the trust, and the authority to determine the order of disposition of trust property upon termination of the trust. Likewise, the Court may even appoint a nonprofit charitable corporation as trustee.

Most importantly, the law permits any person interested in the welfare of the animal, including nonprofit charitable organizations dedicated to the care of animals, to petition the Court regarding the trust. The law holds that the intended use of the principal or income of the trust may be enforced by a person designated in the trust for that purpose or, if none is designated, by a person appointed by a Court. As such, this law would allow beneficiaries of the trust, a person designated by the trust, nonprofit charitable organization, or even a person appointed by the Court to act as an "enforcer." These "enforcers" may, upon reasonable request to the Court, inspect the animal, inspect the premises where the animal is maintained, and inspect the books and records of the trust. Moreover, all trusts with a value over $40,000 must provide an accounting to any other beneficiaries or nonprofit charitable corporation which requests this accounting in writing. Conversely, there would be no accounting required for trusts under $40,000.

The new law holds that a trust for the care of a domestic or pet animal is now considered a trust for a lawful uncharitable purpose and terminates when no animal is living on the date of the settlor's death, unless otherwise provided for in the trust.

If you are interested in creating a pet trust or firming up an existing pet trust, you must choose a person to act as trustee as well as a different person to act as the enforcer of the trust. This will ensure that the general intent of your trust is carried out. In this regard, many nonprofit organizations dedicated to the care of animals are now aware of this new law and can act as your enforcer in exchange for a specified donation. As such, we advise you to research pet welfare groups which match your needs in regards to your pets, and consider designating them as the enforcer in your trust. However, please note that when you give money to a charitable foundation for the purpose of having them agree to be named as an enforcer of your trust, this donation may not be considered a true charitable gift.

Likewise, you should also consider creating a budget for your pet that contemplates all of your pet's present and future needs including pet insurance, the possibility of your pet needing surgery or having a burdensome disability, and the cost of burial or disposal of their remains. Since this new law creates a solid mechanism for ensuring the safety and well being of your pets when you no longer can, we urge anyone interested in so providing for their pet to contact us to schedule a consultation.