(1) Subject to subsection (3), a trust may be performed by the trustee for 21 years but no longer, whether or not the terms of the trust contemplate a longer duration if:
(a) a trust is for a specific lawful noncharitable purpose or for lawful noncharitable purposes to be selected by the trustee; and
(b) there is no definite or definitely ascertainable beneficiary designated.
(2) Subject to the provisions of subsection (3) and this subsection, a trust for the care of a designated domestic or pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument must be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.
(3) In addition to the provisions of subsection (1) or (2), a trust covered by either of those subsections is subject to the following provisions:
(a) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to any use other than for the trust's purposes or for the benefit of a covered animal.
(b) Upon termination, the trustee shall transfer the 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 transferor's will or in a codicil to the transferor's will, under the residuary clause in the transferor's will; and
(iii) if no taker is produced by the application of subsection (3)(b)(i) or (3)(b)(ii), to the transferor's heirs under 72-2-721.
(c) For the purposes of 72-2-717, the residuary clause is treated as creating a future interest under the terms of a trust.
(d) 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 upon application to it by an individual.
(e) 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 is required by reason of the existence of the fiduciary relationship of the trustee.
(f) A court may reduce the amount of the property transferred if it determines that that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property under subsection (3)(b).
(g) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee if required to ensure that the intended use is carried out and if no successor trustee is designated in the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A court may also make such other orders and determinations as are advisable to carry out the intent of the transferor and the purpose of this section.
Enacted by Laws 1993, ch. 494, § 72. Amended by Laws 1995, ch. 592, § 23.
Subpart 2 [72-2-1017] contains an optional provision on honorary trusts and trusts for pets. If this optional provision is enacted, a new subsection (8) [not adopted in Montana] should be added to Section 2-904 [72-2-1005] to avoid an overlap or conflict between Subpart 1 of Part 9 [72-2-1001 through 72-2-1007] (USRAP) and Subpart 2 of Part 9 [72-2-1017]. Subsection (8) [not adopted in Montana] makes it clear that Subpart 2 of Part 9 [72-2-1017] is the exclusive provision applicable to the property interests or arrangements subjected to a time limit by the provisions of Subpart 2 [72-2-1017]. Subsection (8) [not adopted in Montana] states:
(8) a property interest or arrangement subjected to a time limit under Subpart 2 of Part 9 [72-2-1017].
Additionally, the “or” at the end of Section 2-904(6) [72-2-1005(6)] should be removed and placed after Section 2-904(7) [72-2-1005(7)]. [Montana has not implemented this recommendation.]
Subsection (a) of this section [72-2-1017(1)] authorizes so-called honorary trusts and places a 21-year limit on their duration. The figure “21” is bracketed to indicate that an enacting state may select a different figure.
Subsection (b) [72-2-1017(2)] provides more elaborate provisions for a particular type of honorary trust, the trust for the care of pets. Under subsection (b) [72-2-1017(2)], a trust for the care of a designated domestic or pet animal and the animal's offspring is valid for a period of up to 21 years. Again, the figure “21” is bracketed to indicate that an enacting state may select a different figure.
The normal life span of some animal species exceeds 21 years. If a state would prefer to allow the trust to continue until the death of the animal, subsection (b) [72-2-1017(2)] can easily be adapted to that purpose. If a state chooses to take this approach, it would probably be desirable not to allow the trust to continue for the lifetime of the animal's offspring. Appropriate adjustments for achieving this approach are to delete the phrase “and the animal's offspring” from the introductory portion of subsection (b) [72-2-1017(2)] and to modify subsection (b)(2) [72-2-1017(2)(b)] to read: “The trust terminates at the death of the animal.”
Subsection (b) [72-2-1017(2)] meets a concern of many pet owners by providing them a means for leaving funds to be used for the pet's care.