New Mexico has two statutes that represent the state's relevant pet trust laws. The first law enacted, Section 45-2-907 adopted in 1995, states that 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 (but no longer than 21 years). A court may reduce the amount of the property transferred, if it determines that amount substantially exceeds the amount required for the intended use. The trust is liberally construed to effect its purpose and extrinsic evidence is admissible to prove the transferor's intent. The second statute, Section 46A-4-408, was adopted in 2003, and did not repeal the previous pet trust law. The new section follows the language of the Uniform Trust Code and simply states that a trust for the care of an animal alive during the settlor's lifetime is valid. The trust terminates upon the death of the last animal named and any excess trust property is distributed to the settlor, if living, or his or her successors in interest.
§ 45-2-907 Honorary trusts; trusts for pets
A. Subject to Subsection C of this section, if (i) a trust is for a specific lawful noncharitable purpose or for lawful noncharitable purposes to be selected by the trustee and (ii) there is no definite or definitely ascertainable beneficiary designated, the trust may be performed by the trustee for twenty-one years but no longer, whether or not the terms of the trust contemplate a longer duration.
B. Subject to this subsection and Subsection C of this section, 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 shall 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.
C. In addition to the provisions of Subsection A or B of this section, a trust covered by either of those subsections is subject to the following provisions:
(1) 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;
(2) upon termination, the trustee shall transfer the unexpended trust property in the following order:
(a) as directed in the trust instrument;
(b) 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
(c) if no taker is produced by the application of Subparagraph (a) or (b), to the transferor's heirs under the provisions of Section 45-2-711 NMSA 1978;
(3) for the purposes of Section 45-2-707 NMSA 1978, the residuary clause is treated as creating a future interest under the terms of a trust;
(4) the intended use of the principal or income can 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;
(5) 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;
(6) a court may reduce the amount of the property transferred, if it determines that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property under the provisions of Paragraph (2) of Subsection C of this section; and
(7) 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 assure 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 shall be advisable to carry out the intent of the transferor and the purpose of this section.
L. 1995, Ch. 210, § 30, eff. July 1, 1995.
§ 46A-4-408. 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.
L. 2003, Ch. 122, § 4, eff. July 1, 2003.