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When will Georgia join other states allowing Trusts for Animals?
Georgia is the only state in the Southeast without a law allowing valid Trusts for Animals. This could have changed in 2008, but the since the Georgia General Assembly did not consider the proposed revision of the Georgia Trust Code this year, the Trusts for Animals portion of the proposal has been left in limbo.
Georgia is literally surrounded by states with Animal (Pet) Trust laws. All other states in the Southeast have passed legislation making Trusts for Animals legal and binding. Currently, thirty-eight states and the District of Columbia have passed Animal Trust legislation. (See complete list) Maryland has a law making its way through the legislative process (it has been approved by the State Senate). Without this law, Georgia will be in a dwindling minority of states that do not allow this useful Estate Planning option.
The proposed legislation revising the Uniform Trust Code that was to be considered by the Georgia legislature in the 2008 session has been shelved due to ongoing debates about some of the provisions. Although not a point of contention, stuck in the debate is a provision for Trusts for Animals.
This part of the proposed Trust Code revison (Section 53-12-18) is based on UPC § 408 and does not distinguish between household pets and other animals. Also absent is a specified time limit on the trust, although Georgia Code limits trusts to 90 years after the creation of the trust. It is assumed that any animal alive when the trust is created will not live beyond 90 years.
Following is the text of the proposed Trusts for Animals (included with other proposed revisions in the Georgia Uniform Trust Code as developed by the Fiduciary Section of the State Bar of Georgia) now tentatively scheduled for consideration by the Georgia General Assembly during next year's 2009 legislative session:
§ 53-12-18 Trusts for Animals
(a) A trust may be created to provide for the care of an animal that is 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 trust instrument 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.
(c) Upon termination of a trust authorized by this section, the trustee shall transfer any unexpended trust property in the following order:
(i) as directed in the trust instrument;
(ii) if the trust was created in a nonresiduary clause in the settlor's will or in a codicil to the settlor's will, under the residuary clause in the settlor's will; and
(iii) if no taker is produced by the application of subparagraph (i) or (ii), to the settlor, if living, and if not to the settlor’s heirs, as determined under OCGA Sec. 53-2-1
Comment
New. (The Committee did not use “domesticated or pet animal” to avoid questions as to which animals fit into that category. The Committee also did not use subsection (c) of UTC 408 under the theory that a settlor should be able to give as much as he wants to such a trust. The property will eventually go to the remainder beneficiaries. Subsection c is modeled after Uniform Probate Code Sec. 2-907. No time period for the termination of these trusts is included in the statute.
If you would like to know more about the proposed legislation concerning a Georgia trust law for animals, please contact us at Kearse & Associates, P.C. via either this email link or from the Contact Us page of our website.