presently exercisable general power of appointment
/PREZ-uhnt-lee EK-sur-suh-zuh-bul JEN-ruhl POW-er of uh-POYNT-muhnt/·phrase
Also known as:presently-exercisable general power of appointment
Written by attorneys · grounded in primary & secondary sources — see below
A power of appointment under which the donee may presently appoint the property to the donee, the donee's creditors, the donee's estate, or the creditors of the donee's estate. The power functions as an ownership equivalent for purposes such as creditor claims, spousal elective shares, and contract enforcement.
Sources & Authorities
How it applies
Common Examples
4
Contract to Appoint Enforced
Philip Powell holds a presently exercisable general power of appointment over trust assets. He contracts with Phoebe Park to appoint the assets to her upon exercise. When Philip later refuses to perform, Phoebe sues to enforce the contract and obtains specific performance.
Power of Withdrawal Identified
Paige Porter is beneficiary of a trust allowing her to demand any amount of principal at any time by written notice. The trustee objects that the power is limited. The court classifies Paige's right as a power of withdrawal because it meets the definition of a presently exercisable general power of appointment held by a non-trustee without consent or standard restrictions.
Put it into practice
Test Yourself
10
Practice Questions5
· 8 primary sources
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Casebooks
Study Supplements
Creditor Reaches Appointive Assets
Pierce Patterson owes substantial debts and holds insufficient personal assets. He also holds a presently exercisable general power of appointment created by his parent over a separate trust fund. Creditors obtain a court order reaching the trust fund to the same extent as if Pierce owned the assets outright.
Elective Share Includes Power
Pamela Phillips dies survived by her spouse Pearl Porter. Immediately before death Pamela held a presently exercisable general power of appointment over a revocable trust funded by her parent. Pearl claims an elective share that includes the value of the trust assets because the power is treated as ownership at death.
Common questions
Frequently Asked
4
How does a presently exercisable general power of appointment differ from a power of withdrawal under the Uniform Trust Code?+
A power of withdrawal is defined as a presently exercisable general power of appointment held by a non-trustee, excluding powers limited by an ascertainable standard or exercisable only with trustee or adverse-party consent. The distinction determines whether a beneficiary's right is reachable by creditors or triggers special trust consequences.
Supporting sources
When is property subject to a presently exercisable general power reachable by the donee's creditors?+
To the extent the donee's own property is insufficient, creditors may reach the appointive property to the same extent as if the donee owned it outright. This treatment follows because the power is an ownership-equivalent authority.
Supporting sources
Does a presently exercisable general power of appointment count toward a surviving spouse's elective share?+
Yes. Property subject to such a power exercisable by the donee immediately before death is treated as owned by the donee at death for elective-share purposes, regardless of whether the power was created by the donee or another person.
Supporting sources
Is a contract to exercise a presently exercisable general power of appointment enforceable?+
Yes. Because the donee already possesses the authority to make the promised appointment, a contract to exercise the power is enforceable against the donee.
Supporting sources
Trusts and Estates Trusts and Future InterestsTrusts · ClassificationUBEFoundational