A common question from older clients, concerned that their pets might outlive them: How do I make sure my pets are protected?

I have three suggestions for such clients.  The simplest is for the testator to verbally request that a person take care of the animal if something should happen to them.  Another option is to provide the pet, and sufficient money to care for the pet through its expected lifetime, as a specific bequest under the testament (be sure that the financial gift lapses if the pet does not survive the testator!).

Finally, there is the ultimate testamentary tool: the pet trust.  It’s the safest, but most complicated tool to care for pets. 

It used to be that pet trusts (also known as a ‘trust for pets’ or ‘trust for animals’) were created without much in the way of statutory authority, which left the interpretation and implementation of those trusts in the hands of the varied probate judges from county to county.

Now there is clear statutory authority and guidance, in the form of California Probate Code §15212.  That section makes clear that the trust for the care of an animal is a non-charitable trust, subject to termination on the death of the animal, with rigorous accounting requirements. 

It also provides for a liberal viewing by the Court.  In other words, the Court should take the testator at his or her word that they want to create a trust for the benefit of their animals, and not just honor their animals with a mention in the testament.

If you choose this path, be sure to provide clear instructions to distribution of the remaining principal on death of the last animal alive at the time of the testator’s death.  If no instruction is provided, and the trust is not part of a larger instrument with a residuary clause, then the remainder will be distributed to the testator’s heirs at law.

The statue also provides for enforcement by an ‘interested party’, since obviously the pet isn’t going to show up in court to bark or squawk for its rights.

Whatever you do, don’t forget to consult with an attorney!