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Advance Planning for the Future Care of Your Pets

by L. Robin Chang**

In chatting with other fellow pet owners, I am amazed by the incredible statistics recited about pet ownership. “Almost two-thirds of American households own a pet.” “Dogs outnumber children in San Francisco.” But one single statistic, much more troubling than amazing, always sticks out in my mind. According to 2nd Chance 4 Pets, a Los Gatos, California, based nonprofit organization, nearly 500,000 pets are killed every year in shelters and veterinarian offices after their owners die. As pet owners, we love and cherish our pets, and treat them as members of our families. Why shouldn’t we plan to provide for them just as we do for our parents, children, and other loved ones?

The idea of establishing a trust for the care of pets is not novel, but legal limitations in the past prevented them from being an effective and reliable method to plan for future pet care. As a devoted dog lover, one of the most shocking things I learned in my first year of law school was that California law considered pets as merely “chattel,” or personal property. This designation means that our pets have the same rights and legal status as our furniture or cell phones -- essentially none! Following this logic, the law historically treated pet care trusts as “honorary,” meaning the terms of such trusts were not legally enforceable. In other words, a person entrusted with money to care for a deceased owner’s pet could literally “take the money and run” without any legal liability.

On January 1, 2009, a new California law came into effect, Probate Code Section 15212, which finally recognizes the special relationship between pets and their owners. Now, a California pet owner can create a legally enforceable trust to provide for the care of his or her domestic or pet animals, if and when the owner becomes incapacitated or dies. Under this new law, animal care trusts, or “pet trusts,” are presumed to be valid as long as certain legal requirements are met. Generally, these requirements ensure that all of the money left in trust for pets is actually used for the benefit of those pets. 

So what is a trust, and why use a pet trust, anyway? Simply put, a trust is a legal entity created to hold assets for the benefit of designated persons or entities. Traditionally, trusts have been used for numerous purposes, such as preserving assets for the benefit of descendants or other family members, providing funds for one’s own support in the event of incapacity, protecting assets from creditors, avoidance of probate, and providing benefits to charity. Trusts are the preferred vehicle for accomplishing these estate planning and wealth management purposes because the terms of a trust can be custom-tailored to accomplish each individual’s specific goals, wishes, and desires. 

Just as traditional trusts offer maximum flexibility in planning and caring for family members and friends, pet trusts offer pet owners maximum flexibility in planning and caring for their pets. This flexibility means a pet owner can specify the type and level of food, shelter, care, exercise, and companionship required for each pet, in minute detail, if the owner so chooses. Compared to leaving pets to a family member or friend in a will, a pet trust is a superior solution. Primarily, there is no guarantee that those persons will honor their promise or even have the financial means to provide the necessary care. In addition, a will must be “probated,” which means a lengthy court-supervised process that can take anywhere from eight months to several years. Pets need food, water, shelter, and love every day, and none of this will be certain for them until the probate process is complete. In contrast, by properly establishing a pet trust, a pet owner may rest assured that his or her pets will continue to receive the love and care that he or she intended, and that all monies set aside for the pets will be used solely for their benefit. 

As with most new things, though, the new pet trust law is not perfect, and it will take time for any potential problems to be worked out by the Legislature or the courts. For example, the pet trust law grants certain persons and entities the right to inspect the pet, the pet’s home, and the books and records of the trust. But these rights raise numerous questions that are not addressed by the pet trust law, such as “What can an inspector do and not do during an inspection?” or “What is considered the pet’s home if the pet primarily stays outdoors -- just the backyard or the entire house?” Similarly, since pets cannot protect their trust rights themselves, the pet trust law permits “any person interested in the welfare of the animal” to petition a court to enforce and protect the rights of the pets provided in the trust. This language is very broad, and it remains to be seen if and how courts will limit this broad scope. As of the end of June, 2010, there are still no published case decisions discussing this law or providing guidance on how various aspects of the law should be interpreted.

Despite a few questions, the best way now for California pet owners to ensure their pets are provided for if and when the owners become incapacitated or die is to establish pet trusts for the benefit and care of their pets. For those persons interested in establishing a pet trust for their pets, it is highly recommended that they consult with an estate planning professional, rather than trying to set one up on their own or through an online legal service. An experienced estate planning attorney will properly set up the pet trust to comply with the technical requirements of the law while avoiding the potential problems described above, and can advise the pet owner in making those important care decisions -- who will take care of the pets, how much money should be left for the pets, what happens to any money left after all the pets have passed, etc. For more information on pet trusts or to set up an initial consultation with an experienced estate planning attorney, please contact J. Virginia Peiser or L. Robin Chang at (925) 930-6600.

** About the Author: L. Robin Chang is an associate at the law firm Archer Norris, PLC. A member of the tax and estate planning practice group, Robin’s practice focuses primarily on estate planning, taxation, and real estate and corporate transactions. Robin can be reached by phone at (925) 930-6600 or by e-mail at Disclaimer: