## Facts

- R. Forrest Brenner executed a will and a revocable trust instrument on February 23, 1968.
- The will devised all property to his wife, Evelyn, except property held in trust or in joint tenancy.
- The trust instrument created two trusts: the “R. Forrest Brenner Trust” and the “Mile Hi Reporting School Trust.”
- The executor treated the Mile Hi trust as unfunded and included its assets in the probate estate.
- The R. Forrest Brenner Trust declared Brenner trustee of certain real property identified in an attached exhibit, though he did not own that property on the execution date.
- Five days later, the property was conveyed to “R. Forrest Brenner, Trustee for ‘R. Forrest Brenner.’”
- Under the R. Forrest Brenner Trust, income and proceeds were payable to Brenner during life; after death, the successor trustee was to sell the property and distribute proceeds to residual beneficiaries (Brenner’s children from a prior marriage and his niece), unless they elected otherwise.
- Brenner and Evelyn were murdered in 1973; Brenner predeceased Evelyn.
- The probate estate (including Mile Hi assets) was approximately $35,000; the R. Forrest Brenner Trust assets were approximately $200,000.
- The probate court ruled the revocable trust was valid and ordered all administration expenses and death taxes paid from the probate estate.
- The administratrix of Evelyn’s estate appealed.

## Issues

1. Whether a revocable trust in specifically described real property is valid when the settlor did not own the property at execution but acquired and conveyed it to himself as trustee shortly thereafter.
2. Whether, absent a clear direction to the contrary, administration expenses and death taxes must be paid from the probate estate rather than from inter vivos trust assets.

## Decision

- The Court of Appeals affirmed.
- It held the R. Forrest Brenner Trust was valid as to the real property acquired after execution because Brenner manifested intent to create the trust and later conveyed the property to himself as trustee, thereby funding and validating the trust as to that property.
- It upheld the order requiring all administration expenses and death taxes to be paid from the probate estate, not from the inter vivos trust assets.

## Legal Principles

- A trust may be created with respect to specifically identified property to be acquired in the future if the settlor manifests intent to create the trust and, upon acquisition, properly conveys the property into the trust; the later conveyance can make the trust effective as to that property.
- Absent a clear will or trust provision shifting the burden, administration expenses and death taxes are chargeable to the probate estate rather than apportioned to nonprobate assets held in an inter vivos revocable trust.

## Conclusion

The court sustained a revocable trust funded by after-acquired real property where intent and subsequent conveyance into trust were shown, and it applied the default allocation rule requiring the probate estate to bear administration expenses and death taxes absent an explicit direction imposing those charges on trust assets.


In re Estate of Brenner, 547 P.2d 938 (Colo. App. 1976)