Also known as:general powers of appointment · GPOA
Written by attorneys · grounded in primary & secondary sources — see below
A power of appointment that permits the donee to appoint the subject property to the donee, the donee's estate, the donee's creditors, or the creditors of the donee's estate. The power remains general even if it may also be exercised in favor of others. Language creating a power is construed as general unless it expressly prohibits exercise in favor of the donee, the donee's estate, and the creditors of either.
Sources & Authorities· 8 primary sources
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How it applies
Common Examples
3
Unrestricted Withdrawal Right
Gino Giordano created an irrevocable trust holding shares in a startup and named his niece Genevieve Gardner as sole beneficiary. The instrument granted Genevieve the right to withdraw any amount of principal at any time by written demand, with no standard or consent requirement attached. Genevieve's creditor sought to reach the trust assets. Because Genevieve held a presently exercisable general power of appointment, the withdrawal right qualified as a power of withdrawal reachable by the creditor.
Retained Power in Inter Vivos Trust
Grace Gupta transferred assets to an inter vivos trust and retained the power during her life to direct disposition of the trust assets for her own benefit. Upon Grace's death her surviving spouse claimed an elective share that included the trust value. The retained power constituted a general power of appointment, so the trust assets counted as part of Grace's estate for elective-share purposes.
Sullivan v. Burkin390 Mass. 864, 867, 460 N.E.2d 572 (1984)
State-Court Release of Power
Gavin Grant created a revocable trust giving his wife Greta Goldstein a general power of appointment over the corpus. Greta later executed an instrument purporting to release the general power and convert it into a special power. After Gavin's death the estate claimed a marital deduction. The federal tax authorities were not bound by the state-court characterization of the release and determined that Greta had held a general power of appointment at Gavin's death.
Commissioner of Internal Revenue v. Estate of Bosch387 U.S. 456, 465 (1967)
Common questions
Frequently Asked
4
When does a beneficiary's right to withdraw principal qualify as a power of withdrawal?+
A beneficiary's right to withdraw principal qualifies as a power of withdrawal when it constitutes a presently exercisable general power of appointment. The definition excludes a power exercisable by a trustee and limited by an ascertainable standard or a power exercisable only with the consent of the trustee or a person holding an adverse interest.
Supporting sources
Does a general power of appointment cause inclusion of the appointive property in the donee's gross estate?+
Property subject to a general power of appointment held by the decedent at death is included in the decedent's gross estate under federal estate tax rules. The same inclusion occurs if the decedent exercised or released the power in a manner that would have caused inclusion had the decedent been the original grantor.
Supporting sources
How is a general power of appointment distinguished from a special power?+
A general power permits appointment to the donee, the donee's estate, the donee's creditors, or creditors of the donee's estate. A special power cannot be exercised in favor of any of those persons.
Supporting sources
What is the effect of a general power of appointment on the rule against perpetuities?+
A presently exercisable general power of appointment is treated as ownership of the appointive property for perpetuities purposes. The perpetuities period for interests created by its exercise therefore begins to run only when the power is exercised.
Supporting sources
general power of appointment
, in default of which it provided that half of the corpus was to go to his heirs and the remaining half was to go to those of his wife. In 1951 the wife executed an instrument purporting to…
or by revocation of the trust. Such a
power
would be a
general power of appointment
for Federal estate tax purposes (I.R.C. § 2041(b)(1) [1983]) and a “
general
power
” as defined in the Restatement (Second) of Property § 11.4(1) (Tent. Draft No. 5, 1982). We consider first…
Trusts and Estates Trusts and Future InterestsTrusts · ClassificationUBEFoundational