BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 685|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 685
Author: Yee (D) et al
Amended: 1/23/08
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 1/15/08
AYES: Corbett, Harman, Ackerman, Kuehl, Steinberg
SUBJECT : Pet trusts
SOURCE : San Francisco Society for the Prevention of
Cruelty to
Animals
DIGEST : This bill repeals current law on trusts for
domesticated or pet animals and enacts new, more detailed
provisions for the creation and enforcement of pet trusts.
ANALYSIS : Existing law provides that a trust for a
noncharitable corporation or unincorporated society or for
a lawful noncharitable purpose may be performed by the
trustee for only 21 years, 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.
Existing law also provides that 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
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a beneficiary who can seek enforcement or termination of
the trust and whether or not the terms of the trust
contemplate a longer duration.
This bill deletes those provisions and instead provides
that a trust for the care of a designated domestic or pet
animal is a trust for a lawful noncharitable purpose.
Unless expressly provided in the trust, and the trust
terminates when no animal living on the date of the
trustor's death is covered by the trust. The bill provides
that the governing instrument of the animal trust shall be
liberally construed to bring the trust within this section,
to presume against the merely precatory or honorary nature
of the disposition, and to carry out the general intent of
the trustor. Extrinsic evidence is admissible in
determining the trustor's intent.
The bill provides that a trust for the care of a designated
domestic or pet animal is subject to the following
requirements:
1.Except as expressly provided otherwise in the trust
instrument, the principal or income shall not be
converted to the use of the trustee or to any use other
than for the trust's purposes or for the benefit of a
covered animal.
2.Upon termination of the trust, the trustee shall
distribute the unexpended trust property in the following
order:
A. As directed in the trust instrument.
B. If the trust was created in a nonresiduary
clause in the trustor's will or in a codicil to the
trustor's will, under the residuary clause in the
transferor's will.
C. If the application described above does not
result in distribution of unexpended trust
property, to the trustor's heirs under Section
21114.
The bill provides that the provisions of the bill shall be
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treated as creating a future interest under the terms of a
trust, as specified.
The bill further provides that the intended use of the
principal or income may be enforced by a person designated
for that purpose in the trust instrument or, if none is
designated, by a person appointed by a court upon
application to the court. The bill provides that any
person interested in the welfare of the pet animal or any
nonprofit charitable organization whose principal activity
is the care of animals may apply to the court for
appointment as trustee to enforce the trust or for removal
of a trustee for a violation of this section.
The bill specifies that if a trustee is not designated or
no designated trustee is willing or able to serve, a court
shall name a trustee. A court may order the transfer of
the trust property to a trustee if it is required to assure
that the intended use is carried out and if a successor
trustee is not designated in the trust instrument or if no
designated successor trustee agrees to serve or is able to
serve. A court may also make all other orders and
determinations as it shall deem advisable to carry out the
intent of the transferor and the purpose of this section.
If the value of the assets in the pet trust does not exceed
$5,000, no filing, report, registration, periodic
accounting, separate maintenance of funds, appointment, or
fee is required by reason of the existence of the fiduciary
relationship of the trustee, unless ordered by the court or
required by the trust instrument.
If the value of the trust assets exceeds $5,000, the
trustee shall submit to the court an accounting of the
assets in the trust within 60 days of the trustee's
appointment. Thereafter, the trustee shall submit to the
court an accounting of the trust assets biennially. No
hearing on the accounting shall be required. The court
may, for cause and after reviewing the accounting submitted
by the trustee, order a hearing on the accounting, with
notice given to residuary beneficiaries of the trustor's
will, to other named beneficiaries in the trust, and to the
trustor's heirs under Section 21114. The court may, after
the hearing, issue orders necessary to ensure that the
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purpose of the trust is carried out.
The bill specifies that a trust for the care of the covered
domestic or pet animal that has a life span of 21 years of
age or greater shall terminate when that designated animal
dies.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 1/23/08)
The San Francisco Society for the Prevention of Cruelty to
Animals (source)
WildCare
The Humane Society of the United States
The Marin Humane Society
The San Francisco Dog Owners Group (SFDOG)
United Animal Nations
2nd Chance 4 Pets
Action for Animals
The American Society for Prevention of Cruelty to Animals
Animal Switchboard
California Federation for Animal Legislation
ARGUMENTS IN SUPPORT : According to the author's office,
"The changes set out in SB 685 create the basis for
oversight and enforcement of pet trusts. The consequence
of this oversight is that the trust provisions would be
legally protected. If it were seen that pets covered by
the trust were not being properly cared for, legal action
could be taken to ensure that the pets are protected.
Thus, a trustor's plans could be enforced, and pets
surviving their owners could not be discarded with
impunity, as is the case with present pet trust law. This
could then have positive effects on shelters and animal
care facilities, which are all too often the destination
and destiny of pets whose owner/guardian has passed away."
The author and source believe that current California law
treats pet trusts as honorary and therefore these trusts
are unenforceable. The statute (Probate Code Sec. 15212)
does not contain any references to a pet trust being
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honorary and there are no cases interpreting the statute
that would clarify whether or not it is honorary.
Nevertheless, the source of this bill asserts that
California is one of only two states that have
unenforceable pet trust statutes, and that by adopting the
pet trust provisions of the Uniform Probate Code (which
this bill would do), California will finally join 37 other
states that provide for the creation of pet trusts and the
means for their enforcement.
RJG:nl 1/23/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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