It was perhaps fifteen years ago that our office had to advise a client that her beloved dog, who she felt had saved her life in a fire, could not necessarily be the recipient of a trust to care for her after her own death. Our client had just been diagnosed with terminal cancer, knew she had less than a year to live, and was outraged.
“My dog has been closer and more caring to me than my own children and you are telling me the law does not recognize my right to care for her until her death?!”
We explained that the courts had mixed verdicts on that issue, with some judges feeling that it was inappropriate for the court to intervene to try to enforce trust provisions protecting animals.
“Why not? If I want my money to protect my closest friend, why should the court discriminate against me…and my pet? Am I to die knowing that there is no way to safeguard my dog’s care for the rest of her short life?” She was almost in tears.
That was why we were delighted when the California legislature passed specific provisions providing for the legality and enforceability of trusts created to protect animals. That law, and some common sense provisions that one should consider, are the theme of this article.
California Probate Code section 15212 was enacted in 1991 and authorizes trusts for pets. Prior to 1991 in California courts had been reluctant to declare that these types of trusts were valid. These Trusts are subject, generally, to the same law and requirements of standard trusts. See our article on Wills and Trusts.
The section reads:
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.
It may be noted that the complex reason for the precise wording relates to the Rules of Perpetuity which is an antique but still applicable law that provides that a trust provision is void if it cannot be performed within a specified period of time based on human lives in being. This statute allows the trust to exist regardless of that Rule and, further, implicitly allows such a trust to be enforceable. No longer can the courts question whether such a provision is legal.
On its face, it would appear that the task of creating appropriate provisions is not difficult. A standard trust could be created, either in the will (testamentary) or while living (intervivos) and that trust can provide that a trust will be established for the care of the pet, and a specified amount of money will be used by the trustee for the care, feeding, and health care of the pet for the remainder of its life. The article linked above will provide the various details.
But, in reality, there are unique issues to be confronted and the person wishing to protect a pet must confront them or may waste time and money creating a trust that is, practically speaking, of little help.
For example, in most trusts we have a human beneficiary who, if the trustee acts improperly, may go to court to complain and even sue the trustee for breach of fiduciary duty.
Who speaks for the pet? If the trustee or a successor trustee takes some of the money or neglects his or her duties, who is there to complain to the court?
Many of our clients simply assume that a friend or relative, if made the trustee, can be expected to perform the duties and this is not a great danger. What they forget is that the trustee, himself, can become ill or die in which case the successor trustee or even the successor to the successor trustee may be appointed and may care little for the pet or the duties.
One of our clients left a living trust for a parrot, who, one may note, may live up to a hundred years and clearly had at least thirty years of life left. When her sister died three years after she did, the nephew was the successor trustee but he was in the army, moved around quite a bit, and the bird soon was neglected and left with an even younger nephew who was irresponsible. Luckily, a more distant relative, visiting, saw the bird and contacted the writer and we were able to work out a method to have the bird cared for by a professional “bird sitter” but the point made is that unless the Trustor creates some type of human oversight of the trustee, the trust may be useless.
Another issue is the remainder man: what happens to the money after the death of the pet and, too often we see pets left in the care of the very remainder men who achieve access to the money if the pet dies. That is a provision that could be very dangerous for the life of the pet.
It is imperative to think long and hard about the terms and the methods for creating such a trust and there are safe alternatives available if time and trouble is taken to create them.
Or, as one of our clients commented a little sadly, “I am putting more trouble into creating this trust than I had to for my own children. It’s because my cat cannot protect itself, of course…but it does feel odd…”
Odd, perhaps, but necessary if you are to allow your beloved animal to enjoy the remaining years of its life.
Another approach to lifetime care for pets would be to give the pet to a friend, and also give the friend a cash bequest. This would allow the trust to be closed prior to the death of the pet, but also has a risk that the friend would not be legally obligated to pay for the pet's care. Further, if the friend dies or is disabled, there is no one appointed to take his or her place.
Our office thus normally recommends a trust and the reader is advised to consider carefully the terms of the trust keeping the factors above in mind.