Establishing an Animal Trust in California

For many people, pets are considered full-fledged members of the family. In some instances, where a person outlives his or her spouse, children, or siblings, their pet is their only family. As a result, it is not unusual for someone to worry about who will take care of their furry friend after they pass away. Luckily, California law provides guidelines for preparing an animal trust for these exact circumstances.

An animal trust (sometimes referred to as a “pet trust”) is an enforceable legal document designed to ensure your pet receives the level of care you would have provided if you had not passed away or become incapacitated.

As part of the trust document, you name one or more persons to act as the trustee. This person will use whatever money or property you transfer into the trust for your pet’s benefit for as long as that pet is living. This person could be a close family member or friend, who may not want to be compensated for their services, or someone you choose based on their ability to provide specific care, who will be compensated. The money you put into the trust will pay all of these direct and indirect pet maintenance expenses and a stipend for the caregiver if you so choose. 

Yes, there are two types of trusts generally used in California to provide for pets- a testamentary trust and a statutory trust.

A testamentary trust is an estate planning document which takes effect on your death. You create the trust during your lifetime with the assistance of an experienced estate planning attorney, and the document is placed with your will as part of your estate plan. The trustee you name pays for any necessary expenses and care for the pet for as long as the pet is alive.

The second type of animal trust is a statutory animal trust, which is also created during your lifetime with help from an experienced estate planning attorney. It is called a statutory animal trust because the California Probate Code explicitly affirms the legality of such a trust and defines the rights and responsibilities of the parties.

Section 15212 of the California Probate Code provides that a person can create a trust for the care of a designated domestic or pet animal for the life of the animal.  The duration will only be for the life of the pet, even if the trust instrument contemplates a more extended period. Note that the statute uses the singular form of “animal” and the term “domestic” or “pet” is used.

The Probate Code section legally requires your trustee to honor all the terms of trust and allows third parties legal standing to go to court to ensure the terms of the trust are being followed. This provision deals with circumstances in which a trustee fails to properly care for a pet and instead keeps the money for themselves. Should this unfortunate situation occur, the Court may appoint a new trustee and take appropriate action to correct the situation.

For most people, a statutory animal trust covers all of the necessary circumstances you would likely encounter. You can name yourself the original trustee while you are alive, and then appoint a successor trustee to take over in the event of your death or incapacitation. You can also change the successor trustee for any reason while you are still acting as the primary trustee.

The trust instrument is designed to anticipate and deal with all the situations that may arise during their pet’s life. Even more importantly, it will provide all necessary information to ensure that the likes, dislikes, and routines of your pet are made known and respected. These are important issues because your pet will likely be in unfamiliar surroundings without their primary caregiver, so the ability for your trustee to try and normalize their existing preferences and routines will help your pet deal with your absence.

Another substantial advantage of a statutory animal trust over a testamentary trust is that a statutory trust can be funded during your lifetime, while a testamentary trust cannot be funded until after your death as part of estate administration proceedings. This delay puts the burden on your trustee to front all of the costs until your estate is settled, which can take months or even years.

You can fund your animal trust any way you would like, including establishing a separate trust bank account (which you must remember actually to fund) or designating any property you own to the trust. Remember that this does not have to be done prior to death if you prefer to wait and have it funded with a percentage or specific dollar amount of your estate when you pass away. You may even designate the animal trust as the beneficiary of a life insurance policy.

Concern for your pets’ well-being after you are gone is a genuine source of stress and uncertainty. People, no matter what their age or health can take on the responsibility of a new or young pet knowing that the pet will be cared for even when they are not around to do so personally. Thankfully, by contacting an experienced estate planning lawyer, you can take steps to give you peace of mind knowing that your four-legged or feathered friends will be in good hands for the rest of their days.

Disclaimer: This article is intended to provide a general summary of laws in the State of California and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.