A power of appointment is a term most frequently used in the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

of wills to describe the ability of the

testator A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...

(the person writing the will) to select a person who will be given the authority to dispose of certain property under the will. Although any person can exercise this power at any time during their life, its use is rare outside of a will. The power is divided into two broad categories: general powers of appointment and special powers of appointment. The holder of a power of appointment differs from the

trustee Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any individual who holds property, authority, or a position of trust or responsibility to ...

of a trust in that the former has no obligation to manage the property for the generation of income, but need only distribute it.

General power of appointment

''Example: "I leave my video game collection to be distributed as my son Andrew sees fit."'' In the United States of America, a general power of appointment is defined for federal

estate tax An inheritance tax is a tax paid by a person who inherits money or property of a person who has died, whereas an estate tax is a levy on the estate (money and property) of a person who has died. International tax law distinguishes between an ...

purposes in the

Internal Revenue Code The Internal Revenue Code (IRC), formally the Internal Revenue Code of 1986, is the domestic portion of federal statutory tax law in the United States, published in various volumes of the United States Statutes at Large, and separately as Title 2 ...

§2041. A general power of appointment is one that allows the holder of the power to appoint to himself, his estate, his creditors, or the creditors of his or her estate the right to have the beneficial use and enjoyment of certain property covered by the power of appointment. The holder of a general power of appointment is treated for estate tax purposes as if he or she is the owner of the property subject to the power, regardless of whether or not the power is exercised. Thus, the property that is subject to the power is includable in the power holder's estate for estate tax purposes. A general power of appointment is a key element of a type of marital deduction

tax law Tax law or revenue law is an area of legal study in which public or sanctioned authorities, such as federal, state and municipal governments (as in the case of the US) use a body of rules and procedures (laws) to assess and collect taxes in a ...

as prescribed in

§2056(b)(5). It is a trust that qualifies for the marital deduction, provided that the surviving spouse is given the income at least annually and the surviving spouse has a general power of appointment over the trust property remaining at his death. Most general powers of appointment are exercisable under a

will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and wi ...

. The holder of the power refers to the document creating the power in his or her will and designates who among the permissible objects of the power should receive the property. The power could be exercised by creating further trusts. If the power of appointment is not exercised, the default provision of the document that created the power takes over.

Special power of appointment

''Example: "I leave my cactus collection to my children, my wife Pat to choose who receives which cactus."'' A special power of appointment allows the recipient to distribute the designated property among a specified group or class of people, not including donee, donee's estate, creditors of donee, or creditors of donee's estate. For example, a testator might grant his brother the special power to distribute property among the testator's three children. The brother would then have the authority to choose which of the testator's children gets which property. Unlike a general power of appointment, the refusal of the appointed party to exercise a specific power of appointment causes the designated property to revert as a gift to the members of a group or a class. A special power of appointment may be exclusive or nonexclusive. If exclusive, the donee can appoint all the property to one or more members of the class of permissible appointees to the exclusion of the other members of the class. If nonexclusive, the donee must appoint some property to each object. Special powers of appointment also appear in the context of a trust and are primarily used to reduce liability for

generation-skipping transfer tax The U.S. generation-skipping transfer tax ( "GST tax") imposes a tax on both outright gifts and transfers in trust to or for the benefit of unrelated persons who are more than 37.5 years younger than the donor or to related persons more than one ge ...

, or to provide

asset protection trust An asset-protection trust is any form of trust which provides for funds to be held on a discretionary basis. Such trusts are set up in an attempt to avoid or mitigate the effects of taxation, divorce and bankruptcy on the beneficiary. Such trust ...

features without

fraudulent conveyance A fraudulent conveyance, or fraudulent transfer, is an attempt to avoid debt by transferring money to another person or company. It is generally a civil, not a criminal matter, meaning that one cannot go to jail for it, but in some jurisdictions th ...

liability. In the United States, such trusts are referred to as

SPA Trust In United States trust law, a SPA Trust is an irrevocable trust that includes a special power of appointment. Unlike general powers of appointment, a special power of appointment is limited to a certain class of persons or entities that may rec ...

Testamentary power and power presently exercisable

In addition to general and special powers, donors may limit when the power may be exercised by the donees. Testamentary powers are usually indicated by the inclusion of limiting language in the granting instrument such as "to B for life, remainder to persons as B shall 'by will' appoint". General powers presently exercisable do not contain such limitations on power. Wording such as "to B for life, and upon B's death to those that B shall appoint" indicates a power presently exercisable, not a testamentary power. In some jurisdictions, the donee's creditors cannot reach the appointive property when the donee has a presently exercisable power of appointment as long as the power is unexercised.See e.g., ''Irwin Union Bank & Trust Co. v. Long'', 312 N.E.2d 908 (Indiana 1974)

References

{{DEFAULTSORT:Power Of Appointment Equity (law) Wills and trusts Legal professions