A. A trust may be created to provide for the care of one or more animals that are in being and ascertainable on the date of the creation of the trust.
B. The trust instrument may designate a caregiver for each animal. An animal's caregiver will have the custody of the animal and be responsible for its care. If no caregiver is designated or if the designated or appointed caregiver is unable or unwilling to serve, the trustee shall appoint or act as the caregiver.
C. The trust instrument may designate a person to enforce the provisions of the trust. If no person is designated or if the designated person is unable or unwilling to serve, the settlor or any of his successors or a caregiver may enforce the trust.
D. Trust property may be used only for the care of each animal and for reasonable compensation and expenses of the trustee and the caregiver.
E. If the proper court determines that the value of the trust substantially exceeds the amount required to care for each animal and for reasonable compensation and expenses of the trustee and the caregiver, the court may terminate the trust as to the excess portion.
F. The trust shall terminate upon the death of the last surviving animal provided for in the trust instrument.
G. The trust instrument may designate a person to receive the property upon partial or complete termination of the trust. In the absence of a designation, the trust property shall be distributed upon termination to the settlor, if living, or to the settlor's successors.
H. A trust instrument that provides for the care of one or more animals shall be liberally construed to sustain its effectiveness and to fulfill the intent of the settlor.
I. Unless otherwise required by the trust instrument or the proper court, a trustee is not required to post security or provide an accounting.
J. In all matters for which no provision is made in this Section, a trust for the care of an animal shall be governed by the provisions of the Louisiana Trust Code.
Credits
Added by Acts 2015, No. 219, § 1.
Editors' Notes
COMMENTS--2015
(a) This Section is new. It is modeled, in part, on a similar provision in the Uniform Trust Code, as well as language from the Uniform Probate Code and the laws from a variety of other states. See, e.g., Unif. Trust Code § 408; Unif. Prob. Code § 2-907; 12 Del. C. § 3555; Cal. Prob. Code § 15212; N.C. Stat. § 36C-4-408; Tex. Prop. Code Ann. § 112.037; Fla. Stat. Ann. § 736.0408.
(b) This Section provides a simple and alternative way for an individual to provide for the care of an animal. To that extent, this Section creates a unique exception to a foundational principle of Louisiana law and allows an animal to serve as the beneficiary of a trust, through a mechanism sometimes referred to as a “statutory pet trust.” It thus constitutes an exception to the ordinary requirement that a beneficiary be a natural or juridical person. See, e.g., R.S. 9:1801. Individuals may still provide for animals by using a traditional trust wherein a settlor can make a gift of an animal to an individual who is designated as an income beneficiary in a trust instrument. The trust instrument may then provide that the trustee will distribute income to the beneficiary as is necessary, provided that the beneficiary exercises care for the animal. Moreover, an individual may also provide for an animal by making a donation to an individual with an accompanying charge that the donee care for an animal.
(c) Under this Section, only animals that are “in being” are allowable beneficiaries of an animal trust. The general requirements of the Louisiana Trust Code that the beneficiary be sufficiently designated and that the beneficiary be “in being and ascertainable” on the date of the creation of the trust apply. See R.S. 9:1801 and 1803. An unborn animal is deemed to be “in being and ascertainable” if it is born alive. See R.S. 9:1803.
(d) This Section contemplates the existence of a tetrapartite, rather than tripartite relationship, under which there exists a settlor, trustee, caregiver, and beneficiary. Under this Section, the settlor maintains the traditional role and function under the Louisiana Trust Code, R.S. 9:1761 through 1764. The animal serves as the beneficiary. The trustee's role is to exercise his duties with respect to the money or other trust property used for the care of the animal. The caregiver is the party responsible for the care and custody of the animal.
(e) Under a traditional trust, the beneficiary has the ability to enforce the trust and compel the trustee to perform his duties. In the context of a trust for the benefit of an animal, no human beneficiary exists. Consequently, this Section allows the appointment of an individual in the trust to enforce the trust and to ensure that the trustee is appropriately discharging his duties. In the absence of the designation of a person to enforce the trust or if the person designated is absent, deceased, or refuses to serve, the trust provisions may be enforced by the caregiver or the settlor, if living, or the settlor's successors.
(f) Under this Section, a court has authority to terminate the trust in part if the trust property “substantially exceeds” the amount required to care for each animal and for reasonable compensation and expenses of the trustee and the caregiver. This provision is modeled on Section 2-907(c)(6) of the Uniform Probate Code rather than Section 408(3) of the Uniform Trust Code. The standard of care that the animal had received prior to the creation of the trust should be considered by a court in ascertaining whether the trust property “substantially exceeds” what is necessary.
(g) A trust may be created for one or multiple animals. Under this Section, the trust terminates upon the death of the last surviving animal. Thus, this Section creates specific exception to the general provisions of the Louisiana Trust Code specifying a maximum term for a trust. See, e.g., R.S. 9:1831, 1832, and 1833.
(h) Upon partial or complete termination of a trust, the trust property is distributed to the person named in the trust, who may be a natural or juridical person or the trustee of another trust. If the trust does not provide for a recipient upon partial or complete termination, the trust property shall be distributed to the settlor, if living, or to the settlor's successors.
(i) As with the creation of any trust, no particular language need be used to create an animal trust, provided the intent to do so is clear. See R.S. 9:1753. Thus, a statement in a will as simple as, “I leave $10,000 for the care of my dog” or “I leave $10,000 to my dog” should be sufficient to establish an animal trust under this Section.
(j) Despite the stand-alone nature of this Section, resort to the background rules of the Louisiana Trust Code is necessary in some instances. Thus, the attempt to provide for every possible contingency under this Section has been avoided and, under the last provision of this Section, reference is made to the rules of the Louisiana Trust Code, mutatis mutandis, when relevant.