Some of you have probably read a recent story in the Oregonian about a man who left a trust for his ten cats, whose condition deteriorated to the point that five died and the trustees are seeking a caregiver to adopt the survivors. <http://www.oregonlive.com/living/index.ssf/2016/07/trust_fund_cats_looking_for_a.html>. Most of you probably remember the more notorious trust in favor of Leona Helmsley’s pets. Oregon was a pioneer in the legalization of pet trusts, and if you want your pet taken care of after your passing, it may be a good way to resolve difficulties if you can’t find anyone to take them in. For example, in the Oregon cat trust case, the grantor had no relatives available to take them in after he died.
Both Oregon and Washington have laws allowing trusts for the benefit of animals. ORS 130.185, <http://www.oregonlaws.org/ors/130.185>; RCW Ch. 11.118, <http://app.leg.wa.gov/RCW/default.aspx?cite=11.118&full=true>. They have very similar provisions. Generally speaking, a trust can be created for the benefit of animals alive during your lifetime. It lasts as long as all of the animals are alive (unless otherwise stated). The terms of pet trusts are interpreted in favor of protecting the animals and are generally considered mandatory on the trustees. The Oregon cat trust, in which it was decided to remove the cats from the grantor’s former home against the trust’s terms, is one of the few situations where it was clear a deviation was appropriate and uncontested.
The trustee may be compensated for expenses and receive a reasonable fee from the trust, but may not be otherwise paid by the trust. Although it has never been interpreted by the courts in Oregon or Washington, a reasonable fee probably will be based on the reasonable expense for tending a similar animal. Thus, for dogs and cats, kennel rates are probably the maximum. For horses, stabling fees can be epected, and for other animals, the value will vary. Tending a hamster probably costs much less than a parakeet.
Washington does limit its trusts to vertebrates, presumably because many invertebrates are relatively short-lived and not often kept as pets. There may be exception; for example, Victor, the lobster from the Seaside Aquarium, was estimated to be 80 to 100 years old when he died in 1994 from injuries suffered in an attempted lobster-napping. Also, how do you identify which of the ants in your ant farm were alive during your lifetime? Oregon doesn’t have a similar limitation.
Pet trusts can be enforced by the courts if an interested person files a petition. This includes caretakers or persons interested in the animal’s welfare. The provision for enforcement may have been a factor in the decision of the trustees of the Oregon cat trust to seek a caretaker when they discovered the cats were not doing well.
Unlike most trusts, pet trusts do not require periodic accounting by the trustee unless ordered by the court. It is possible that a trust’s terms may include an accounting requirement, but it is unclear if that would be enforced. It may be worth considering if you want to create a very large pet trust, particularly if the trustee would not receive the balance after the trust ends. (That way, the accounting would protect against embezzlement.)
After the trust ends, the balance goes to whoever is designated as a recipient. If there isn’t anyone, the balance reverts to the grantor if living. If the grantor has also died, the balance goes to whoever takes the grantor’s estate, except that in Washington, if the trust isn’t created in the grantor’s will, the will doesn’t apply to the balance.
Pet trusts can be very easy to create. In Oregon, an oral statement can be enough. Because of difficulties documenting oral trusts, however, most are created in official trust documents or wills. If you want to have a trust for your pets, you will probably want to see a lawyer, but it shouldn’t be very expensive.