The settlor included language both in the trust terms and in a “Comprehensive Transfer Document” (“CTD”) executed contemporaneously with the execution of the trust assigning all of his property to the trustee, including property acquired after the execution of the trust and the CTD. The settlor executed a will six years after the execution of the trust and the CTD. After his death, his administrator brought a declaratory judgment action to ascertain the assets, if any, of the probate estate and the will beneficiaries counterclaimed. The trial court found that the after acquired property clauses were valid, but on appeal the will beneficiaries prevailed. The Georgia intermediate appellate court, relying on Restatement (Third) of Trusts § 86, held that the after acquired property language was ineffective because an interest that has not yet come into existence cannot be held in trust. Rose v. Waldrip, No. A12A0393, 2012 WL 2849784 (Ga. Ct. App. July 12, 2012).
Special thanks to William LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts, and Estates, New York Law School) for bringing this case to my attention.
