This overview explores the recent changes in probate law related to wills and trusts for the continuing care of animals.
"Can I put my dog in my will?"
The answer to this question depends in large part whether your state has adopted the Uniform Trust Act (UTA) of 2000 or a statute that addresses pet trusts. The UTA does not allow you to will property to an animal per se , but allows you to set up a trust for the continuing care of your pet. The Act itself is an example of the increased recognition of animal interests in the civil law arena. The provisions of the Uniform Trust Act of 2000, 1 which have been adopted in approximately 39 states, 2 lower another long-standing legal barrier for animals. The river has been forded. The traditional view in the United States has disallowed animals to be the lawful subject of a provision in a will or trust. 3 This inability of individuals to make provisions for their pets after their deaths was addressed by the drafters of the Uniform Trust Law with the drafting of Section 408 of the Act. Under this section, a trust for the care of an animal is specifically allowed along with the authorization for courts to appoint someone to enforce the trust. 4 Parallel language has also been made part of the Uniform Probate Law. 5 Thus, a pet becomes a legally relevant being, one who has income and assets which must be protected with in the legal system.
This change of legal status has occurred in that most traditional of legal areas - trust and estates. This change is of a different quality than the examples before. In this case, government action is not required for the interests of an animal to be asserted in the legal system. The civil courts have authority to act on behalf of the animals. While the primary motivation may well have been taking care of the concerns of human owner of pets, the lawyers and legislatures adopting the Uniform Law and associated state statutes apparently did not have any conceptual difficulty in accommodating animals into our existing legal community.
Footnotes:
1 Uniform Trust Code, Last Revised or Amended in 2001, Drafted by the National Conference of Commissioners on Uniform State Laws.(available at: http://www.law.upenn.edu/library/ulc/uta/2001final.htm ).
2 For example, see Alaska (Sec 13.12.907); Arizona (Sec 14-2907); California (CA Prob. Sec 15212); Colorado (Sec 15-11-901); Florida (Sec 737.116); Iowa (Sec 633.2105); Kansas ( KS ST § 58a-408 ); Michigan (Sec 700.2722); Missouri (Sec 456.055); Montana (Sec 72-2-1017); Nevada (Sec 163.0075); New Jersey (Sec 3B:11-38); New Mexico (Sec 45-2-907); New York (Est. Pow. & Trst. Sec 7-8.1); North Carolina (Sec 36C-4-408); Oregon (Sec 128.308); Tennessee (Sec 35-15-408); Utah (Sec 75-2-1001); Washington ( WA ST 11.118.005 - WA ST 11.118.110 ), among others. )To see if your state has adopted a provision, see the Map of Pet Trusts or the Table of Wills & Trusts Statutes ).
3 See generally, Gerry W. Beyer Pet Animals: What Happens When Their Humans Die? 40 SANTA CLARA L. REV. 617 (2000); Siobhan Morrissey, Wills Go To the Dogs, 89 ABA JOUR. 24 (May 2003).
(a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.
(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
Uniform Trust Code § 408, supra note .
5 Uniform Probate Code § 2-907(1993). Adopted by Arizona:
Honorary trusts; trusts for pets; conditions
B. A trust for the care of a designated domestic or pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.