BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 685
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          Date of Hearing:   June 10, 2008

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Dave Jones, Chair
                       SB 685 (Yee) - As Amended:  May 27, 2008

                    PROPOSED CONSENT (As Proposed to be Amended)

           SENATE VOTE  :   40-0
           
          SUBJECT  :   PET TRUSTS

           KEY ISSUE  :   SHOULD THE LAW BE CLARIFIED TO ENSURE THAT PET  
          TRUSTS ARE VALID AND ENFORCEABLE IN CALIFORNIA?

                                      SYNOPSIS

          This non-controversial bill, sponsored by the San Francisco  
          Society for the Prevention of Cruelty to Animals (SFSPCA), would  
          repeal current law on trusts for domesticated or pet animals and  
          enact new, more detailed provisions for the creation and  
          enforcement of pet trusts.  According to the SFSPCA,  
          increasingly, pet owners are seeking to ensure that their pets  
          are cared for after the owner's death or disability.  Thus,  
          informal arrangements with family or friends have been made for  
          the care of such animals.  Some have ventured to include pets in  
          their wills, while others have created "pet trusts" that set  
          aside money for the care of the pets in the event of the owner's  
          death or disability.  Examples include famed real estate and  
          hotel mogul Leona Helmsley who left a trust of $12 million for  
          the care of her pet dog.  Another, lesser known pet owner from  
          Maryland, willed some $400,000 plus a house to the three stray  
          dogs that he adopted.  Under such trusts, the trustee or  
          executor is expected to pay a caretaker to ensure that the pets  
          are housed, fed and maintained as provided in the trust or will.  
           This bill seeks to ensure that pet trusts are valid and  
          enforceable in California.  The sponsor states that this bill  
          ensures that the pet or pets designated within the trust are  
          protected and cared for as the settlor intended and are not sent  
          unnecessarily into the animal shelter system.  This bill has no  
          known opposition.  

           SUMMARY  :   Seeks to ensure that pet trusts are valid and  
          enforceable.  Specifically,  this bill  :









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          1)A trust for the care of an animal is a trust for a lawful  
            noncharitable purpose.  Unless expressly provided in the trust  
            and subject to certain requirements, the trust terminates when  
            no animal living on the date of the settlor's death is covered  
            by the trust.

          2)The governing instrument shall be liberally construed in order  
            to bring the trust within the normal rules for trusts, to  
            presume against the honorary nature of the disposition, and to  
            carry out the general intent of the settlor.

          3)The trust principal or income shall not be converted to the  
            trustee's use or for any purpose other than for the benefit of  
            the covered animal.

          4)Upon termination of the trust, the trustee shall distribute  
            the unexpended trust property as specified:

             a)   As directed in the trust instrument;

             b)   If the trust was created in a nonresiduary clause in the  
               settlor's will or in a codicil to the settlor's will, under  
               the residuary clause in the settlor's will;

             c)   If the application of a) or b) does not result in  
               distribution of unexpended trust property, to the settlor's  
               heirs as specified.

          5)The intended purpose of the trust principal or income may be  
            enforced by a person designated by the trust or, if none is  
            designated, by a person appointed by the court.  Among others,  
            any person interested in the welfare of the pet animal or any  
            nonprofit charitable organization whose principle activity is  
            the care of animals may petition the court regarding the trust  
            as provided.
           
           6)If the value of the assets in the trust does not exceed  
            $40,000, no accounting, filing, separate maintenance of funds,  
            fees, or other report is required by reason of the fiduciary  
            relationship to the trustee, unless ordered by the court or  
            required by the trust instrument.
           
           7)Any beneficiary, any person designated by the trust instrument  
            or the court to enforce the trust or any nonprofit charitable  
            corporation that has as its principal activity the care of  








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            animals may, upon reasonable request, inspect the animal, the  
            premises where the animal is maintained or the books and  
            records of the trust.
           
           8)A trust governed by this measure is not subject to termination  
            solely because the trust principal does not exceed $20,000.  
          
          9)A trust governed by this measure shall not automatically be  
            limited to 21 years.  

           10)If the trust instrument does not name a trustee or no trustee  
            or successor trustee is willing or able to serve, the court  
            would be required to appoint a trustee to carry out the  
            intended use of the trust property.  A court may make all  
            other orders necessary to carry out the settlor's intent.

          11)"Animal" means one or more domestic or pet animals for whose  
            benefit the trust was established.

           EXISTING LAW  provides that a trust for the care of an animal may  
          be performed by the trustee for the life of the animal, 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.  (Probate Code Section  
          15212.)

           FISCAL EFFECT  :   As currently in print this bill is keyed  
          non-fiscal.

           COMMENTS  :   This non-controversial bill, sponsored by the San  
          Francisco SPCA, seeks to repeal current law on trusts for  
          domesticated or pet animals and enact new, more detailed  
          provisions for the creation and enforcement of pet trusts.  The  
          author states that this bill creates the basis for oversight and  
          enforcement of pet trusts, ensuring that the trust provisions  
          are legally protected.  The sponsor, states that current law  
          treats pet trusts as honorary and therefore these trusts are  
          unenforceable.  The sponsor asserts that California is one of  
          only two states that have unenforceable pet trust statutes.  By  
          adopting the pet trust provisions of Uniform Probate Code  
          Section 2-907, the author explains, California will finally join  
          37 other states that provide for the creation of pet trusts and  
          the means for their enforcement.  The author states that this  
          bill would also have positive effects on shelters and animal  
          care facilities, which are often the destination and destiny of  








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          pets whose owner or guardian has passed away.
           
           No Bones About It, This Bill Creates Enforceable Pet Trusts  .   
          This bill specifies several conditions that the trust must meet  
          in order to be valid.  First, except as the governing instrument  
          itself may provide, a pet trust cannot be converted to the use  
          of the trustee or for any use other than the trust's purpose or  
          for the benefit of a covered animal.  Second, upon termination  
          of the trust, the trustee must transfer the unexpended trust  
          property either as directed by the trust or, if the trust was  
          created in a nonresiduary clause of a will, the trustee must  
          transfer the unexpended trust property under the residuary  
          clause of the will.  If the trustee could not transfer  
          unexpended assets as described, the trust property would be  
          distributed to the settlor's heirs as provided in Probate Code  
          Section 21114.
           
           Additional Trust Provisions Make This Bill The Cat's Meow  .  This  
          bill would provide for the court's appointment of a trustee if  
          the pet trust does not designate a trustee or no designated  
          trustee is willing or able to serve.  The court may require the  
          transfer of property to a trustee, if necessary to carry out the  
          settlor's intended use of the property, as well as make other  
          orders.

          This bill establishes a threshold for accounting purposes.  If  
          the value of the assets in the trust does not exceed $40,000, no  
          accounting, filing, separate maintenance of funds, fees, or  
          other report is required by reason of the fiduciary relationship  
          to the trustee, unless ordered by the court or required by the  
          trust instrument.  However, if the value exceeds $40,000, the  
          accountings required by Probate Code section 16062 shall be  
          provided to the beneficiaries who would be entitled to  
          distribution if the animal were then deceased and to any  
          nonprofit charitable corporation that has as its principal  
          activity the care of animals and that has requested these  
          accountings in writing.  Section 16062 requires, among other  
          things, the trustee to account at least annually, at the  
          termination of the trust, and upon a change of trustee, to each  
          beneficiary to whom income or principal is required or  
          authorized in the trustee's discretion to be currently  
          distributed.

          Under this bill, the intended use of the trust principal or  
          income may be enforced by a person designated by the trust  








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          instrument or, if none is designated, by a person appointed by  
          the court.  The bill states 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  
          petition the court regarding the trust as provided in Probate  
          Code Part 5, Chapter 3.  This Chapter includes among the issues  
          for which a petition may be made, the internal affairs of the  
          trust or to determine the existence of the trust as provided in  
          Probate Code Part 5, Chapter 3.
           
          The pet trust created under this bill would be subject to all of  
          the Probate Code provisions that generally govern trusts.  As a  
          result, the trust may sue and be sued, buy and sell stocks, and  
          conduct any activity that a trust where the beneficiary is a  
          person may conduct.  

           Author's Technical Amendment  .  In order to clarify that this  
          bill covers both "domestic animals" and "pet animals," the  
          author has agreed to replace these terms with "animal" and  
          defines "animal" to mean one or more domestic or pet animals for  
          whose benefit the trust was established.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          San Francisco SPCA (sponsor)
          Action for Animals
          American SPCA
          Animal Legal Defense Fund
          Animal Switchboard
          California Federation for Animal Legislation
          Humane Society of the United States
          Marin Humane Society
          Pets Are Wonderful Support
          San Francisco Dog Owners Group
          State Humane Association of California
          United Animal Nations
          2nd Chance 4 Pets
          One individual
           
            Opposition

           None on file  
           








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           Analysis Prepared by  :    Manuel Valencia / JUD. / (916) 319-2334