Also known as: general power presently exercisable · presently exercisable general power · presently exercisable general power of appointment
Written by attorneys · grounded in primary & secondary sources — see below
A power of appointment that permits the donee to appoint property immediately to the donee, the donee's creditors, the donee's estate, or the creditors of the donee's estate. The power qualifies as presently exercisable when the donee holds unilateral authority without conditions such as trustee consent or an ascertainable standard limiting exercise to health, education, support, or maintenance.
Gideon Graves created an irrevocable trust holding shares in a logistics firm and named his niece Grace Gupta as sole beneficiary. The instrument granted Grace the right to demand any amount of principal at any time by written notice alone. When a judgment creditor sought to reach the trust assets, Grace's authority constituted a general power presently exercisable because she could appoint the property to herself without trustee approval or any limiting standard.
Gordon Gray funded an irrevocable trust with farmland and named his daughter Gretchen Graham as beneficiary. The instrument allowed Gretchen to withdraw parcels but only after obtaining written consent from her brother Gavin Grant, who served as co-trustee and held the remainder interest. Because exercise depended on consent from a person holding an adverse interest, Gretchen's authority did not qualify as a general power presently exercisable.
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A presently exercisable general power allows the donee to appoint the property immediately to the donee, the donee's creditors, the donee's estate, or the creditors of the donee's estate. In contrast, a testamentary power becomes exercisable only at death, and a nongeneral power limits appointees to a narrower class.
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The right fails when it is exercisable by a trustee and limited by an ascertainable standard or when it requires consent of the trustee or a person holding an adverse interest. A beneficiary who must obtain such consent therefore lacks a presently exercisable general power.
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Property subject to a presently exercisable general power held by the decedent immediately before death is treated as owned in substance by the decedent and is included in the elective-share calculation. The surviving spouse may therefore reach that property even though it passed outside probate.
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