June 1, 2020
What is a Pet Trust?
Providing for your pets in a trust ensures that pets are not abandoned or left without care after you pass. With a pet trust, a trustee will use a portion of your assets to care for your pets as directed. The law regarding pet trusts continues to evolve, and using proper trust language is mandatory to create a trust that is valid and enforceable.
Under common law, pet trusts were invalid. Animals were not considered “ascertainable beneficiaries” under common law, so their owners could not leave them anything. [Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 SANTA CLARA L. REV. 617, note 2 at 630 (2000).] In fact, the United States legal system continues to classify animals as property. As such, animals lack standing to enforce a trust, and therefore, leaving assets to a caretaker presents a problem.
However, some states have passed laws to overcome these obstacles, allowing people to set up valid, enforceable pet trusts. One such state is California.
California first passed a pet trust law in 1991. That version of the law left the use of trust assets up to the trustee’s discretion. In 2008, California enacted its current, stricter pet trust law. Among other things, the current law requires that the trustee use trust assets and income solely for the care of the pets, except as otherwise provided in the trust document. Also, any interested person or nonprofit foundation can petition the court regarding the trust, to ensure that its intended use is being followed . [Prob. Code § 15212.]
How to Set Up a Pet Trust
There are two ways to set up a pet trust. The first way is to include language in your will that creates a “testamentary trust,” i.e., a trust that comes into existence at your death. Your will would leave money and/or other assets to a designated trustee, and would designate a caretaker (who might also be the trustee) to use the assets to care for your pets, with any remaining assets distributed to residual beneficiaries after the pets’ demise.
The second way is to set up a trust during your lifetime (a “living trust” or “inter-vivos trust”) naming yourself as the initial trustee and naming a trustworthy friend, relative, or nonprofit foundation as your successor. Setting up a trust during your lifetime avoids the waiting period of a will in probate, during which time a testamentary trust would go unfunded. A living trust can be augmented at your death by a bequest in your will; for example, by leaving your home to the trust for the use of pets and possibly their caretaker.
Remember to Use Clear Language
The trust language should clearly identify the pets to be cared for, or else it should task someone (perhaps the designated caretaker) with identifying what pets you owned at the time of your death, so there is no question as to how the trust assets are to be spent, or when the trust ends.
Without clearly indicating your wishes, you could face the problem presented in Lange v. Nusser [(Cal. Ct. App. March 2, 2011) 2011 WL 721481 (unpublished)] where a cat owner, Lange, established a living trust “to care for any cats that are in the possession of the settlor at the time of her demise or incapacity,” with any residual trust assets to be divided among her children after all her cats passed away. The trust did not identify any specific cats, nor how many cats Lange had, nor how the human beneficiaries could learn when the cat trust had ended. Lange died, and her daughter Nusser became trustee. The trustee lived rent-free in the family home, which was the only trust asset. The trustee indicated she would live there indefinitely for the benefit of the cats. Time went by, and eventually the other beneficiaries claimed the cats must have all died and that the trustee should sell the house and divide the proceeds among Lange’s children. The trustee claimed there were still cats alive (though she would not identify them or say how many there were) and she refused to leave. The other beneficiaries asked the court to determine whether the house could now be sold. The court found for the trustee, because Lange had provided no mechanism by which to end the trust other than finding that all the cats were dead, and the sole witness to their existence, the trustee, denied that they were dead. The appellate court affirmed this ruling. The trustee, whether or not there really were cats still there, continued to occupy the house. This may not be what the trust settlor, Lange, intended, but it is what her trust allowed to happen.
Be sure that your pet trust states everything that needs to be stated so that after you are gone, your wishes are followed and can be enforced in court if needed.
Need more information?
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.