PLANNING IS FOR THE BIRDS AND THE CATS, AND THE DOGS, AND THE HORSES: PROVIDING FOR PETS IN FINANCIAL AND ESTATE PLANS

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1 PLANNING IS FOR THE BIRDS AND THE CATS, AND THE DOGS, AND THE HORSES: PROVIDING FOR PETS IN FINANCIAL AND ESTATE PLANS SAN ANTONIO ESTATE PLANNING COUNCIL Gary L. Flotron, MBA, CLU, ChFC, AEP May 20, 2009

2 This publication and presentation is designed to provide accurate and authoritative information in regard to the subject mater covered. It is sold and/or provided with the understanding that the author/publisher in not engaged in rendering legal, accounting, and other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Copyright 2009, Gary L. Flotron, MBA, CLU, ChFC, AEP All rights reserved.

3 PLANNING IS FOR THE BIRDS..AND THE CATS, AND THE DOGS, AND THE HORSES: PROVIDING FOR PETS IN FINANCIAL AND ESTATE PLANS Gary L. Flotron, MBA, CLU, ChFC, AEP I. Introduction. A. Before you think the San Antonio Estate Planning Council has gone to the dogs, pun intended, consider these facts: Between 12% and 27% of American pet owners have included animals in their wills. Harper s Index reported in 1991 that over one million dogs have been named as will beneficiaries. The popular media has reported various estate planning arrangements made by celebrities on behalf of their pets such as the provisions to care for Nicholas the cat made by the late singer Dusty Springfield, tobacco heiress Doris Duke leaving $100,000 in trust to care for her dog, Betty White s plans to leave her $5 million estate for the benefit of her pets, Oprah Winfrey apparently has also made undisclosed arrangements to see that her dog will live out his life in luxury, and, of course, the widely publicized Leona Helmsley 12 million dollar trust for her pet. B: Over two-thirds of pet owners treat their pets as members of their family. In Fact: 20% of Americans have altered a romantic relationship over a pet related issue. 80% of pet owners brag about their pets to others. 79% allow their pets to sleep in bed with them. 37% carry photos of their pets in their wallets. 31% take time off from work to stay home with a sick pet. C. While no statistics are available, I am told by many divorce attorneys that more and more divorce couples are making joint custody arrangements with their pets similar to arrangements for their children. Also, have you noticed that hotel chains such as Hilton and Marriott have become very pet friendly and are catering to pet owners traveling with their pets. D. The American Veterinary Medical Association estimates that over 59 million households own a companion animal. This includes 71 million cats, 62 million dogs, 10 million birds and 5 million horses. The average annual veterinary expenditure per household per year is $261 for dogs, $160 for cats, $18 for birds, and $263 for horses. In 2005 alone $36.3

4 billion was spent on pet food, pet supplies, veterinary visits, medicines, live animals and services. E. In helping clients plan their estates we naturally discuss with the client charitable inclinations and the specific handling of special assets. Given the special bond between pet owners and their pets it seems only natural that we ask the client if they have considered arrangements or have made any plans for the care of their pets. Just as not every client is interested in making charitable arrangements, not every client will be interested in making caring arrangements for their pets. On the other hand, many clients will be interested and appreciate the fact that you were sensitive to this issue and brought up a point that many clients have not thought about or considered despite the fact that many clients view their pets like their children. II. III. Legal Disclaimer. Contingencies Causing Inability to Care for Pet(s). A. Temporary unforeseen incidents (i.e., car breakdown, stuck out of town, accident, short-term disability due to an accident or sickness). B. Long-term incapacity - serious long-term disability due to an accident or sickness (i.e., major stroke, accident leaving you unconscious for an extended period). C. Death. IV. Do I Need to Plan for the Care of My Pet(s) for Contingencies and Emergencies and How Much Planning Do I Need to Do? A. It depends. B. Factors to consider: 1. Family situation. a. Spouse. b. Children. c. Other relatives. d. Close friends. e. Adoption groups. f. Heirs or beneficiaries of estate. g. Relationship of above groups with the pet. h. Effect of common disaster or simultaneous deaths. 2. Do you live alone?

5 3. Your age and/or health. 4. Life expectancy of pets. 5. Do you have multiple pets and do you wish to keep these pets together? 6. Do you have special needs pets? 7. Adoption and rescue groups agreements. C. What happens and what are the legal and practical consequences of not planning or doing nothing? 1. Temporary unforeseen incidents. 2. Long-term incapacity. 3. Death. a. By law, animals are considered tangible personal property. b. Dying without a will (intestate). c. Dying with a will (testate). V. Initial Steps in Planning to Care for Your Pet(s) for Contingencies and Emergencies. A. Selecting temporary and permanent caretaker(s). 1. The first step and, by far, the most difficult. Like choosing who will be the guardian for your minor children. 2. A potential caretaker could be someone who has the same pets as you do and understands your particular type of pet. a. This could also be a problem for permanent caretakers because of the increased burden of caring for more pets and local restrictions on the number of pets per household. 3. If no individual caretaker can be found, you may have to consider a non-profit organization to care for your pet(s). a. Adoption groups will care for your pet(s) while trying to find a new permanent home for your pet(s). b. A number of veterinary schools have programs whereby a vet student takes responsibility for and gives permanent

6 care for your pet. An excellent example is the Stevenson Companion Animal Life-Care Center at Texas A & M University. Generally, a fee or donation to the vet school is required. c. Similar other arrangements are provided by other nonprofit organizations. See as an example of a non-profit organization providing a retirement home for your pet(s) upon death or permanent incapacity of the pet owner. 4. Caretaker must be willing and able. 5. Potential caretaker must know your expectations for caring for your pet(s), including special needs of your pet(s). 6. Potential caretaker, the caretaker s family and the caretaker s pet(s) need to spend a reasonable amount of time with your pet(s) to ensure compatibility. 7. Decide and discuss monetary considerations, such as expenses to care for pet(s) and other compensation with potential caretaker. 8. Ask and make sure that the potential caretaker is comfortable with the arrangement and is definitely willing and able to serve. 9. Provide copy of documents, or location of documents, to caretaker, including instructions and all other necessary information on the care of your pet(s). 10. Repeat above process for successor and alternative caretakers. 11. Review on an annual basis, or at least every other year, the selection of the caretaker(s), and whether or not the caretaker is still willing and able to serve. 12. Effect of adoption group agreements on the selection of caretakers particularly greyhound adoption groups. a. Some, if not most, adoption group agreements, or contracts, provide that on the inability of the pet owner to provide care for the pet, the pet must be returned to the adoption group. Furthermore, the pet owner may not give away or transfer the animal to any individual or organization. b. Thus, the adoption agreement precludes the transfer of the pet to a permanent caretaker on the incapacity or death of the pet owner, except to the adoption group.

7 c. Alternatively, the pet owner could discuss with the adoption group the selection of a permanent caretaker in the event of incapacity or death, and seek the written permission and approval of the adoption of the selected caretaker. B. Prepare Emergency Alert Pet Card, and Pet Information Sheet and Instructions. 1. Emergency Alert Pet Card for wallet or purse (see samples). 2. Pet Information Sheet and Instructions (see sample). a. Identification of pet. b. Detailed instructions and care of pet. c. Veterinary information. d. Locations of appropriate legal documents and other records. e. Make your expectations and intentions clear as to the standards of care for your pets and how you want your pet cared for. 3. Provide copies of Pet Information Sheet and Instructions to caretaker(s) and location of updated Pet Information Sheet and Instructions. VI. Planning for Temporary Unforeseen Incidents to Care for Your Pet(s). A. Line up temporary caretakers. Potential candidates could include your children, neighbors, friends and adoption group members. B. Put name(s) and phone numbers of caretakers on Emergency Alert Pet Card. C. Make sure your pet(s) are familiar with the temporary caretaker(s). D. Review with temporary caretaker(s) and provide a copy of Pet Information Sheet and Instructions. E. Make sure temporary caretaker(s) know the location in your home of the Pet Information Sheet and Instructions. F. Either give keys to temporary caretaker(s) or provide a method so caretaker has immediate access to your home and pet(s).

8 VII. The Cost to Provide for your Pet(s) Care in the Event of Long-Term Incapacity (Disability) or Death. (See Sample Worksheet.) VIII. Planning for Long-Term Incapacity or Disability to Care for Your Pet(s) and Yourself. A. Legal documents and tools. 1. Durable power of attorney. a. Avoids the cost, delays and ambiguity of a guardianship and/or conservatorship proceeding before a probate court. b. Allows an agent, or attorney-in-fact (obviously a trusted person) to act on your behalf with regard to property and financial matters. c. Can have self-triggering provisions, or springing powers, to come into effect when you are incapacitated. d. Agent can and should be given the authority and directions to expend funds to see that your pet(s) are cared for according to your desires. e. The pet owner may want to express his or her wishes that the owner and pet(s) continue to have contact during the owner s incapacity or disability unless impossible under the circumstances. 2. Revocable living trust. a. Provides mechanism where a successor trustee (the creator of the trust is the primary beneficiary and generally the original trustee) can take over and manage the trust property upon the incapacity of the trust creator. b. Trustee can and should be given the authority and directions to expend funds to see that your pet(s) are cared for according to your desires. c. Trust must be funded. That is, assets must be titled in the name of the trust. B. Financial tools and other benefits. 1. Disability insurance. a. Group short-term or long-term disability insurance. b. Individual disability policies. 2. Critical illness insurance.

9 3. Long-term care insurance. 4. Life insurance cash values and disability waiver of premium provisions. 5. Retirement plans generally have disability provisions. 6. Social security. IX. Planning to Care for Your Pet(s) Upon Your Death. A. Legal documents and tools. 1. Will. a. We all have a will. The question is did the state write it for us or did we write it ourselves. b. Wills only controls property that is titled solely in your individual name. c. Wills are controlled by and must go through probate court. A very expensive, time consuming and public process. d. Trusts may be created in a will (testamentary trusts). This includes (in some states) pet trusts or trusts where a pet is the life beneficiary. 2. Revocable living trust. a. An alternative to a will that can save significant costs in estate administration due to reduction or elimination of probate and attorney fees, and other estate administration expenses. b. Private, non-public arrangement. c. Avoids will contests and time delays. d. A trust for your pet(s) may be created within the revocable living trust, including (in some states) pet trusts or trusts where a pet is the life beneficiary. B. Alternative planning arrangements. 1. Outright gift or bequeath of pet(s) to caretakers. a. May or may not include bequeath of necessary funds to care for the pet(s), which is dependent on relationship of caretaker to the former pet owner. For example, if the caretaker is a relative and beneficiary who is receiving

10 other inheritances then a separate fund for the care of the pet(s) may not be necessary. However, if the caretaker is not a beneficiary under the will, if would seem appropriate to provide the caretaker with the funds necessary to provide for the pet(s). b. Gift or bequeath may be created by will or revocable living trust. c. Caretaker may be an organization. d. Caretaker would keep excess funds upon the death of pet(s). e. Pet owner must have faith and trust in caretaker to use funds appropriately for the care of the pet(s). This arrangement would be unsuitable if caretaker is a spendthrift. f. This arrangement provides for the least control and enforcement of the pet owners desires and wishes. 2. Pet trust arrangement for the care of pet(s). a. Approximately 40 plus states have some type of pet trust statue that allows trusts where the pet(s) is the beneficiary of the trust during the pet(s) life. b. These trusts may be created by will or revocable living trust. Note: Although not explicitly stated by the will or revocable living trust, certain arrangements, and liberal interpretation of the intentions of the deceased, could be construed as creating a pet trust in most states that have pet trust statues. c. In general, the caretaker is the trustee of the trust. Most state statues provide for reduced and simplified administration of the trust. d. After the life of the pet(s) excess funds would go to a remainder beneficiary. Remainder beneficiary should not be the caretaker trustee; otherwise the trust accomplishes nothing legally. It is best to use a non-profit animal organization as the remainder beneficiary. e. Trust needs to be funded; otherwise the whole arrangement makes no sense. f. The duration of the trust with most states is the life of the pet(s). However a few states, New Jersey, New York and Tennessee, for example, limit the duration of the trust to a maximum of 21 years. g. There are two types of pet trust statues: Honorary trusts, and statutory pet trusts. h. An example of a honorary trust statue state is California. Missouri and Tennessee until recently had honorary trust

11 statues. These trusts are unenforceable, since there is not a human life beneficiary to enforce the trust terms and provisions. The trustee is on his or her honor to carry out the terms of the trust as intended by the creator of the trust. i. Almost all of the pet trust statue states use some variation of the statutory pet trust as provided by Section Trust for Care of Animal - of the Uniform Trust Code. The statues provide that a pet trust may be enforced by an individual or person named in the terms of the trust for that purpose, or, if no person is so appointed, by an individual appointed by the court. j. The statutory pet trust arrangement provides more control and enforcement of the pet owner s desires and wishes than an outright bequeath. k. The statutory pet trust statues were designed and intended to make the best of poorly drafted instruments. In other words, it is preferable to have a well-drafted instrument as opposed to relying on these statues. 3. Traditional legal trust for the care of pet(s). a. The traditional legal trust is valid and enforceable in all states. Solves potential problems of moving to states with either different pet trust statues or no pet trust statues. b. The caretaker, or successor caretaker(s), is named the beneficiary of the trust for the life of the pet(s), conditioned on caring for the pet(s). The trustee is independent and oversees that the pet(s) is properly cared for during the life of the pet(s). The trustee manages the trust funds and administers the trust. c. These trusts may be created by will or revocable living trust. d. After the life of the pet(s) excess funds would go to a remainder beneficiary. Remainder beneficiary should not be the caretaker trustee, due to conflict of interest. It is best to use a non-profit animal organization as the remainder beneficiary. e. Trust needs to be funded; otherwise the whole arrangement makes no sense. f. Trust duration limited to the rule against perpetuities. That is, trust duration will be measured by some human lives in being at the time the trust is irrevocably established, plus 21 years and 9 months. g. The traditional legal trust provides the most, and best, control and enforcement of the pet owner s desires and wishes.

12 C. Source of funds. X. Leave a Legacy. h. This type of trust is preferred over the pet trust arrangements. 1. One source of funds for the care of your pet(s), although certainly not the only source of funds, would be life insurance. a. Keep in mind that pet(s) cannot be named beneficiaries of life insurance policies. However, a trustee of a trust can be named beneficiary. Alternatively, if the pet is bequeathed outright to the caretaker, caretaker could be named beneficiary of a portion of the proceeds of the life insurance policy necessary to care for the pet(s). Note the serious drawbacks of leaving the proceeds directly to the caretaker. b. Rather than pay the life insurance proceeds as a lump sum, proceeds could be paid out as an annuity over a fixed number of years. c. Avoid having life insurance proceeds paid to the estate, thus subjecting the proceeds to probate fees and the claims of creditors. If the trust for the care of your pet(s) is created by will, and if life insurance proceeds are to be used to fund that trust, than the beneficiary would have to be the estate. If the trust to care for your pet(s) is created in a revocable living trust, the trust can be the beneficiary of the life insurance proceeds, thus avoiding probate fees and being subject to the claims of creditors. A. Remember adoption and animal groups in your estate plans. 1. Bequeath in wills or revocable living trusts. 2. Remainder beneficiary of trusts for your pet(s) and other trusts. 3. Life insurance (both group and individual policies). 4. Beneficiary of retirement plans and IRAs. 5. If not named the primary beneficiary, animal groups could be named the contingent beneficiary. 6. Beneficiary designations are not an all or nothing proposition. In other words, portions may be divided among different beneficiaries. B. Significant lifetime advantages of certain giving techniques to organizations that are 501(c)(3) organizations. XI. Final Thoughts on Planning for the Care of Pet(s).

13 A. Planning for the care of pet(s), although very important, is just part of overall planning. B. Final thought. People do not plan to fail. They fail to plan. XII. References and Resources. The single best resource, for the pet owner and professional adviser alike, for planning for your pet s care, is the web site produced by The Estate Planning for Pets Foundation, There is also a section for attorneys that provides sample language for a conditional bequest to a caretaker, statutory pet trust, common law trust and durable power of attorney with regard to caring for pets. While many publications and references were used in putting together this presentation, by far the most helpful was this web site. I wish to thank Steven Baker, Esq., the founder, director and author for his assistance and for putting together this wonderful web site, and for his service to pet lovers everywhere. The Humane Society of the United States has an excellent kit entitled Providing for Your Pet s Future Without You. This kit is loaded with useful information and stuff, including emergency alert pet cards, signage, forms for pet information sheets, etc. It is available free of charge by either calling or requesting it on line at The National Association of Estate Planners & Councils (NAEPC) web site, contains a list and contact information of local affiliated estate planing councils. Some local estate planning councils have their membership directories on the web site. Others may be contacted to find information on their members. This site also lists and provides contact information for all Accredited Estate Planners (AEP). Other useful references include: Gerry W. Beyer, Pet Animals: What Happens when Their Humans Die?, 40 SANTA CLARA L. REV. 617 (2000); web site: Estate Planning for Non-Human Family Members, Updated April 17, (April 2009) J. Alan Jensen, Tax and Estate Planning Involving Pets: Stupid Pet Tricks for the IRS and Fido, web site: (Aug. 2000) Gerhard Shipley, Pet Trusts: Providing for Pets, web site: (Dec. 1999).

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18 WORKSHEET: ESTIMATED TOTAL AMOUNT OF PET CARETAKING FUNDS REQUIRED Input: Enter numbers where indicated in green (or leave blank if N/A), and results are below. Estimated annual % return on invested caretaker funds (after-tax): 4% (percent) Estimated life expectancy of pet animal (see web page): 9 (years) (for table of life expectancy of various type of pet animals, go to ) Estimated amounts spent monthly on: $ Food $ Medications $ Grooming Other $ - Estimated amounts spent annually on: $ Veterinarian services $ Boarding, pet-sitting, etc $ Toys, recreation, and entertainment Compensation to caretaker (in addition to reimbursements). $ - Other.. $ - Estimated amounts spent less frequently on: New cages or other enclosures - Estimated amount expended each occasion $ - (must enter both - Number of years between expenditures. - fields to compute) Other infrequent expenses - Estimated amount expended each occasion $ (must enter both - Number of years between expenditures. 3 fields to compute) Estimated amount for respectful disposition of pet's remains $ Results: Estimated total amount of caretakng funds needed:* (assuming a 3% annual rate of inflation) - For monthly expenditures - For annual expenditures - For other expenditures Total. $ 8,776 $ 7,709 $ 515 $ 17,000 * Assumes that costs will increase 3% - the average annual rate of inflation. Copyright The Estate Planning for Pets Foundation. For personal use only.

19 States With Pet Trust Statutes The following is a list of states that have enacted some time of pet trust statue(s) as of April 17, 2009: Alabama Alaska Arizona Arkansas California Colorado Delaware District of Columbia Florida Hawaii Idaho Purpose Trust Illinois Indiana Iowa Kansas Maine Maryland Michigan Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Virginia Washington Wisconsin Wyoming

20 Proposed Federal Legislation: H.R (introduced May 10, 2001) to amend the Internal Revenue Code to treat charitable remainder pets trusts in a similar manner as charitable remainder annuity trusts and charitable remainder unitrusts. H.R is often referred to as the Morgan Bill after Rep. Earl Blumenauer's pet collie.

21 Section 408. Trust For Care of Animal (a) A trust may be created to provide for the care of an animal 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 terms of the trust 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) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor s successors in interest. Comment This section and the next section of the Code validate so called honorary trusts. Unlike honorary trusts created pursuant to the common law of trusts, which are arguably no more than powers of appointment, the trusts created by this and the next section are valid and enforceable. For a discussion of the common law doctrine, see Restatement (Third) of Trusts 47 (Tentative Draft No. 2, approved 1999); Restatement (Second) of Trusts 124 (1959). This section addresses a particular type of honorary trust, the trust for the care of an animal. Section 409 specifies the requirements for trusts without ascertainable beneficiaries that are created for other noncharitable purposes. A trust for the care of an animal may last for the life of the animal. While the animal will ordinarily be alive on the date the trust is created, an animal may be added as a beneficiary after that date as long as the addition is made prior to the settlor s death. Animals in gestation but not yet born at the time of the trust s creation may also be covered by its terms. A trust authorized by this section may be created to benefit one designated animal or several designated animals. Subsection (b) addresses enforcement. Noncharitable trusts ordinarily may be enforced by their beneficiaries. Charitable trusts may be enforced by the State s attorney general or by a person deemed to have a special interest. See Restatement (Second) of Trusts 391 (1959). But at common law, a trust for the care of an animal or a trust without an ascertainable beneficiary created for a noncharitable purpose was unenforceable because there was no person authorized to enforce the trustee s obligations. Sections 408 and 409 close this gap. The intended use of a trust authorized by either section may be enforced by a person designated in the terms of the trust or, if none, by a person appointed by the court. In either case, Section 110(b) grants to the person appointed the rights of a qualified beneficiary for the purpose of receiving notices and providing consents. If the trust is created for the care of an animal, a person with an interest in the welfare of the animal has standing to petition for an appointment. The person appointed by the court to enforce the trust should also be a person who has exhibited an interest in the animal s welfare. The concept of granting standing to a person with a demonstrated interest in the animal s welfare is derived from the Uniform Guardianship and Protective Proceedings Act, which allows a person interested in the welfare of a ward or protected person to file petitions on behalf of the ward or protected person. See, e.g., Uniform Probate Code 5-210(b), 5-414(a). Subsection (c) addresses the problem of excess funds. If the court determines that the trust property exceeds the amount needed for the intended purpose and that the terms of the trust do not direct the disposition, a resulting trust is ordinarily created in the settlor or settlor s successors

22 in interest. See Restatement (Third) of Trusts 47 (Tentative Draft No. 2, approved 1999); Restatement (Second) of Trusts 124 (1959). Successors in interest include the beneficiaries under the settlor s will, if the settlor has a will, or in the absence of an effective will provision, the settlor s heirs. The settlor may also anticipate the problem of excess funds by directing their disposition in the terms of the trust. The disposition of excess funds is within the settlor s control. See Section 105(a). While a trust for an animal is usually not created until the settlor s death, subsection (a) allows such a trust to be created during the settlor s lifetime. Accordingly, if the settlor is still living, subsection (c) provides for distribution of excess funds to the settlor, and not to the settlor s successors in interest. Should the means chosen not be particularly efficient, a trust created for the care of an animal can also be terminated by the trustee or court under Section 414. Termination of a trust under that section, however, requires that the trustee or court develop an alternative means for carrying out the trust purposes. See Section 414(c). This section and the next section are suggested by Section of the Uniform Probate Code, but much of this and the following section is new

23 Section 409. Noncharitable Trust Without Ascertainable Beneficiary Except as otherwise provided in Section 408 or by another statute, the following rules apply: (1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than [21] years. (2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. (3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor s successors in interest. Comment This section authorizes two types of trusts without ascertainable beneficiaries; trusts for general but noncharitable purposes, and trusts for a specific noncharitable purpose other than the care of an animal, on which see Section 408. Examples of trusts for general noncharitable purposes include a bequest of money to be distributed to such objects of benevolence as the trustee might select. Unless such attempted disposition was interpreted as charitable, at common law the disposition was honorary only and did not create a trust. Under this section, however, the disposition is enforceable as a trust for a period of up to 21 years, although that number is placed in brackets to indicate that States may wish to select a different time limit. The most common example of a trust for a specific noncharitable purpose is a trust for the care of a cemetery plot. The lead-in language to the section recognizes that some special purpose trusts, particularly those for care of cemetery plots, are subject to other statutes. Such legislation will typically endeavor to facilitate perpetual care as opposed to care limited to 21 years as under this section. For the requirement that a trust, particularly the type of trust authorized by this section, must have a purpose that is not capricious, see Section 404 Comment. For examples of the types of trusts authorized by this section, see Restatement (Third) of Trusts 47 (Tentative Draft No. 2, approved 1999), and Restatement (Second) of Trusts 62 cmt. w and 124 (1959). The case law on capricious purposes is collected in 2 Austin W. Scott & William F. Fratcher, The Law of Trusts (4th ed. 1987). This section is similar to Section 408, although less detailed. Much of the Comment to Section 408 also applies to this section.

24 Tex. Prop. Code Effective 1/1/06 Sec TRUST FOR CARE OF ANIMAL. (a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates on the death of the animal or, if the trust is created to provide for the care of more than one animal alive during the settlor's lifetime, on the death of the last surviving animal. (b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if a person is not appointed in the terms of the trust, by a person appointed by the court. A person having an interest in the welfare of an animal that is the subject of a trust authorized by this section may request the court to appoint a person to enforce the trust or to remove a person appointed to enforce the trust. (c) Except as provided by Subsections (d) and (e), property of a trust authorized by this section may be applied only to the property's intended use under the trust. (d) Property of a trust authorized by this section may be applied to a use other than the property's intended use under the trust to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. (e) Except as otherwise provided by the terms of the trust, property not required for the trust's intended use must be distributed to: (1) if the settlor is living at the time the trust property is distributed, the settlor; or (2) if the settlor is not living at the time the trust property is distributed: (A) if the settlor has a will, beneficiaries under the settlor's will; or (B) in the absence of an effective provision in a will, the settlor's heirs. (f) For purposes of Section , the lives in being used to determine the maximum duration of a trust authorized by this section are: (1) the individual beneficiaries of the trust; (2) the individuals named in the instrument creating the trust; and (3) if the settlor or settlors are living at the time the trust becomes irrevocable, the settlor or settlors of the trust or, if the settlor or settlors are not living at the time the trust becomes irrevocable, the individuals who would inherit the settlor or settlors' property under the law of this state had the settlor or settlors died intestate at the time the trust becomes irrevocable.