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Power of appointment

A power of appointment is authority granted to a person to direct who receives property held in a trust. The person holding the authority is the powerholder, and the trust terms define how the power may be exercised. A power may be limited to specified recipients or may allow broader distributions, including distributions to the powerholder, with different estate consequences described for a general power.

How it works

A power of appointment lets its holder direct the disposition of trust property. The trust instrument sets the permitted recipients and the way the power can be exercised. Arizona law characterizes a trustee's exercise of a power to appoint trust property under the relevant subsection as exercising a special power of appointment.

A general power can include authority to distribute trust assets to the holder. Practitioners describe a discretionary power to distribute assets to oneself without an ascertainable standard as a general power, with estate inclusion as a consequence.

A powerholder may release a power or limit or restrict it in whole or in part under Oregon law. Tennessee law allows a holder of a general testamentary power to represent permissible appointees and takers in default when no conflict of interest exists.

Where it shows up for owners of businesses, real estate and private investments

A trust holding a business interest, real estate or private investments can give a person authority to direct who receives that property. The instrument's terms determine whether the power reaches a narrow group of recipients or permits distributions to the holder.

A power may also appear in the steps used to create a trust. West Virginia law lists exercising a power of appointment in favor of a trustee as one way a trust is created.

Points that are easy to confuse

A special power and a general power describe different scopes of authority. Arizona law calls a trustee's specified exercise a special power, while practitioners describe a discretionary ability to distribute trust property to oneself without an ascertainable standard as a general power.

A power of appointment is distinct from trustee authority generally. Institutional research describes nonfiduciary powers of appointment as excluded from the Uniform Directed Trust Act's trust-director rules.

Common questions

Can a power of appointment be released or limited?

Oregon law allows a person granted or reserving a power of appointment or similar disposition power to release it, or to limit or restrict it in whole or in part. The rule concerns the power under Oregon law.

Can a holder of a general testamentary power represent other trust interests?

The rule applies under the Tennessee Uniform Trust Code provision described here.

Sources
  • Creating and Maintaining Flexibility in Wills and Trusts, nytaxattorney.com (link)
  • Oregon Revised Statutes, oregonlegislature.gov (link)
  • Substituted for: House Bill No. 743, capitol.tn.gov (link)
  • West Virginia Code, code.wvlegislature.gov (link)
  • 14-10819 - Trustee's special power to appoint to other trust, azleg.gov (link)
  • Harvard Law School, laweconcenter.law.harvard.edu (link)

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