PA 09-169—sSB 650

Judiciary Committee

AN ACT CONCERNING THE CREATION OF A TRUST FOR THE CARE OF AN ANIMAL

SUMMARY: This act authorizes the creation of a testamentary or inter vivos trust to provide for the care of an animal or animals alive during the lifetime of the person who creates it. The trust must terminate when the last surviving animal dies. Under prior law, trusts for animals were simply honorary, because animal beneficiaries could not enforce them.

The act requires the trust to designate a trust protector to act on the animal's behalf and gives the protector certain enforcement and oversight powers. The act requires the trustee to annually render an account to the trust protector for the trust, signed under penalty of false statement. It allows a probate court to replace a trust protector for the same reasons it can currently replace a trustee (death, incapacity, refusal to serve, or resignation).

The act gives Superior Court jurisdiction over any trust created under the act. It also gives a probate court jurisdiction if the trustee is otherwise subject to its jurisdiction or the trust is an inter vivos trust and is, or could be subject to, its jurisdiction for an accounting by law.

The act requires that trust property may be applied only to its intended use, subject to proper trust expenses including trustee fees, except to the extent the Superior Court or a probate court having jurisdiction, upon application by the trustee or trust protector, determines that the value of the trust property exceeds the amount required for its intended use. The act establishes how trust property must be distributed if it exceeds the amount needed or the trust is terminated.

Finally, the act specifies that, except as the act otherwise provides, statutory provisions governing trust creation and administration apply to trusts created to provide for the care of an animal.

EFFECTIVE DATE: October 1, 2009

ENFORCEMENT

The act gives a trust protector the right to file a petition in the Superior Court or a probate court having jurisdiction to enforce the provisions of the trust, remove or replace any trustee, or require a trustee to render an account. The court may award costs and attorney's fees to the trust protector, from the trust property, if the trust protector prevails on the petition and the court finds that filing the petition was necessary to fulfill the trust protector's duty to act on behalf of the animal or animals provided for in the trust.

It also gives the trust protector the right to ask the attorney general to file a petition in court to enforce the trust's provisions, remove or replace any trustee, or seek restitution from the trustee if the protector determines that the trustee has used trust property for personal use or has otherwise committed fraud. The act allows the attorney general to file the petition only if he or she determines that the circumstances warrant it.

DISTRIBUTION OF TRUST PROPERTY

The act requires that trust property not required for its intended use, including trust property remaining when a trust is terminated, must be distributed in the following order of priority:

1. as directed by the terms of the trust;

2. to the remainder beneficiaries identified in the trust instrument, under the same terms provided in the trust for the remainder interest;

3. to the settlor, if living;

4. pursuant to the residuary clause of the settlor's or testator's will; or

5. to the settlor's or testator's heirs in accordance with the laws governing descent and distribution.

BACKGROUND

Inter Vivos Trust

An inter vivos trust is established while the creator (called a settlor) is alive. The settlor can revoke it or change it during his or her lifetime.

Testamentary Trust

A testamentary trust is created by the terms of a will and places some assets from the dead person's estate in a trust to exist from the date of death until fully distributed.

Vacancies in the Office of Trustee

By law, a probate court with jurisdiction may appoint some suitable person to fill a vacancy caused by the trustee's death, incapacity, refusal to serve, or resignation (CGS 45a-474).

Jurisdiction of Accounts of Fiduciaries

Probate courts have jurisdiction of the interim and final accounts of testamentary trustees and accounts of the actions of trustees of inter vivos trusts. By law, a trustee or a settlor of an inter vivos trust may ask the probate court to review the trustee's or attorney's actions under the trust. If the court finds that appointment of an auditor is necessary and in the best interests of the estate, the court upon its own motion may appoint one to be selected from a list provided by the probate court administrator to examine accounts over which the court has jurisdiction (CGS 45-175).

OLR Tracking: GC: JKL: SS: DF