T. 9 Cdbk. III Cdtl. II Ch. 1–C pr. § 2263
CHAPTER 1–C. TRUST FOR THE CARE AND BENEFIT
OF AN ANIMAL
§ 2263 Trust for the care of an animal
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.
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
for 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.
Approved June 23, 2015.