California Law Now Supports Trusts for the Care of Animals
Safeguarding pets during incapacity or after death is an issue that is often overlooked during the estate planning process. Pets are an important part of people’s lives. For some, they are more than pets, they are companions.
During incapacity or upon death, what happens to one’s pet companion? Who will feed and clean it? Will they be taken to a veterinarian for check-ups? What veterinarian will be used? Will the pet be sent to the pound? Will separation occur when multiple pets are involved?
In the past, California law did not recognize pet trusts. Trusts could be created, but they were not enforceable. As there was no mechanism to insure for the well-being of one’s pets, many owners chose to euthanize their pets. As shocking as this may be, the thought of their companions being injected into a bad situation was the worst option for many.
Today, California Probate Code section 15212 provides the authority that supports trusts for the care of animals until the death of the animal.
A trustee named in the trust or appointed by a court may enforce the terms of the trust. If questions about the trustee’s job performance arise, a person having interest in the welfare of the animal may petition a court to request removal of the trustee.
Assets in the trust may be applied to the intended use as expressed in the trust. The intended use could include types of food, frequency of feedings and even limousine trips to the pet spa. To the extent the assets exceed the amount required for the intended use, excess assets must be distributed to the settlor of the trust or the settlor’s successors in interest.
When creating a pet trust, there are many issues that can be raised:
Certainty: The level of certainty in insuring that the wishes are carried out is one big issue. As more certainty is sought, more complex trust provisions will be required. As complexity weaves its way into the trust, drafting costs rise and so does the future costs to administer the trust.
Caregivers: Caregivers for the pets can be hired by the trustee or the trust can be written to find and incentivize future owner.
Inspection of Caregivers: Inspectors can also be hired by the trustee to oversee the caregivers.
Accounting of Assets: Accountings of assets may be required to the residuary beneficiaries depending on the size of the trust.
Residuary Beneficiary: Upon the termination of the trust, which is generally at the death of the pet, the remainder of the trust assets is to be distributed to a named beneficiary. If there are none, the assets will be distributed to those persons who would then be the settlor’s heirs as determined by California Law.
These are just some of the issues that need to be addressed in a pet trust. As far as what happens if multiple pets can be provided for under a trust or what happens if a pet is pregnant and delivers a large litter and then dies, those issues are reserved for a more thorough discussion of pet trusts.
There are alternatives to pet trusts for pets such as continuing care programs for pets after the owner’s death. Another alternative is devising the pet to a friend or relative. This devise should come with a gift of cash or something of value. This is simple devise comes with a disadvantage – a lack of certainty amongst other disadvantages.
Whether it is during times of incapacity or after death, an estate plan can be designed to provided for one’s pet companion. Whether it is through a will, power of attorney or pet trust, there are options as well as non-estate planning alternatives. As a pet owner myself, I hope going forward more pet owners will provide for their pet companions.
SAN PEDRO PET PALS
Clint Patterson, a volunteer, and sponsor at San Pedro Pet Pals invited my daughter and I to come look at kittens after our amazing cat escaped and was taken by a wild animal. We initially went to tour and look at the furry critters. Our tour started with holding and playing with several kittens. One stole the show. He was passed around from volunteer to volunteer and could not have been enjoying the human interaction more. As we left to go tour another portion of the facility another family walked in. Worried that they would see the greatness in the kitten we had held, the fear of losing out on the kitten took over. I stopped the tour and made sure that they reserved that kitten for us. We ended up taking Russell home. His name was actually Mickey. However, there is a rule in our house that our pets get named after something in the wine industry. I think my daughter made that rule. As Russell is the first name of a great winemaker in Paso Robles, we named him Russell. He gets along with our dog Parker great and has brought our feral cat out of his shell. Oh, and Parker’s name? It comes from Fess Parker an eponymous winery in Los Olivos, CA started up by the actor who portrayed Daniel Boone and Davy Crocket.
Clint Patterson
