Powers of Appointment Flashcards
Donor
creator of the power of appointment
donee
the person who is given the power
power of appointment
an authority created in (or reserved by) a donee enabling the donee to designate the persons who may take the donor’s property, based on donor’s guidelines
takers in default
take the property if the donee fails to exercise the power
purpose of power of appointment
allows someone to look at facts in distribution at a later date for the distribution of property
general power of appointment
a donee can appoint to herself, her creditors and her estate as if she owned the property herself
special power of appointment
the donee cannot appoint to herself, typically there is a limited class to whom the donee can present
presently exercisable power of appointment
the donee can exercise it right now, in her lifetime
testamentary power of appointment
the donee can appoint only by will
Does a general will provision, “I leave all my property to…” exercise all POAs held by the donee?
Yes, unless the creator of the trust called for specific references in the donees will
power of appointment and elective share
a general, presently executable power of appointment that the donee has access to during her lifetime will be counted as a testamentary substitute (T-SUB).
It’s not a T-Sub if donee can’t get to it.
Special powers of appointment or testamentary powers of appointment are not T-subs.
Donee’s creditors’ rights to the donor’s property
Donee has a general presently exercisable power of appointment. and creditors can reach the appointed assets even if she does not exercise the power.
what if Dana has a general testamentary power of appointment?
No. Except if:
Dana was the donor and donee of the power of appointment; or
She exercised that power in favor of her estate
