Report Title:

Probate Code; Pet Trusts

Description:

Provides validation for domestic and pet animal trusts extending beyond the death of the transferor. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1453

TWENTY-THIRD LEGISLATURE, 2005

H.D. 1

STATE OF HAWAII

S.D. 1


 

A BILL FOR AN ACT

 

RELATING TO ANIMALS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 560, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§560:   Trusts for domestic or pet animals. (a) A trust for the care of one or more designated domestic or pet animals shall be valid. The trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this section, to presume against the precatory or honorary nature of its disposition, and to carry out the general intent of the transferor. Extrinsic evidence shall be admissible in determining the transferor's intent.

(b) A trust for the care of one or more designated domestic or pet animals shall be subject to the following provisions:

(1) Except as expressly provided otherwise in the instrument creating the trust, and notwithstanding section 554A-3, no portion of the principal or income of the trust may be converted to the use of the trustee or to a use contrary to the trust's purposes or for the benefit of a covered animal;

(2) Upon termination, the trustee shall transfer the unexpended trust property in the following order:

(A) As directed in the trust instrument;

(B) If there is no such direction in the trust instrument and if the trust was created in a non-residuary clause in the transferor's will, then under the residuary clause in the transferor's will; and

(C) If no taker is produced by the application of subparagraph (A) or (B), then to the transferor's heirs, determined according to section 560:2-711;

(3) The intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court having jurisdiction over the matter and parties, upon petition by an individual;

(4) Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee shall be required by reason of the existence of the fiduciary relationship of the trustee;

(5) The court may reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use and the court finds that there will be no substantial adverse impact in the care, maintenance, health, or appearance of the designated domestic or pet animal. The amount of the reduction, if any, shall pass as unexpended trust property under paragraph (2);

(6) If a trustee is not designated or no designated trustee is willing and able to serve, the court shall name a trustee. The court may order the transfer of the property to another trustee if the transfer is necessary to ensure that the intended use is carried out and if a successor is not designated in the trust instrument or if no designated successor trustee agrees to serve and is able to serve. The court may also make other orders and determinations as are advisable to carry out the intent of the transferor and the purpose of this section; and

(7) The trust is exempt from the operation of chapter 525, the Uniform Statutory Rule Against Perpetuities Act."

SECTION 2. Section 560:8-101, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Except as provided elsewhere in this chapter, on the effective date of this chapter:

(1) The chapter applies to any wills of decedents dying thereafter;

(2) The chapter applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this chapter;

(3) Every executor of a will admitted to a probate prior to July 1, 1977 in this State and every administrator appointed prior to July 1, 1977 by a court of this State shall be a supervised personal representative with respect to the estate, and every guardian of the property appointed prior to July 1, 1976 by a court of this State shall be a guardian of the property, with only the powers conferred by this chapter and subject to the duties imposed by this chapter with respect to any act occurring or done thereafter. Every guardian of a person holding an appointment on that date continues to hold the appointment but has only the powers conferred by this chapter and is subject to the duties imposed by this chapter with respect to any act occurring or done thereafter;

(4) The consequences of an act done before the applicable effective date in any proceeding and any accrued right is not impaired by this chapter. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before July 1, 1977, the provisions of such statute shall remain in force with respect to that right;

(5) Any rule of construction or presumption provided in this chapter applies to instruments executed and multiple-party accounts opened before July 1, 1976 unless there is a clear indication of a contrary intent;

(6) Notwithstanding any of the above, this chapter shall not affect any property or other rights accrued under the case and statutory law of this State, including but not limited to the law relating to intestacy, dower and curtesy (chapters 532 and 533), which became vested prior to July 1, 1977[.];

(7) Section 560:   applies to governing instruments executed on or after the effective date of Act   ."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.