Also known as:general testamentary power of appointment · general testamentary powers · general powers of appointment · testamentary powers of appointment
Written by attorneys · grounded in primary & secondary sources — see below
A power of appointment exercisable only by will that permits the donee to appoint the subject property to the donee, the donee's estate, or the donee's creditors. The power is treated as the functional equivalent of ownership for purposes such as the disposition of ineffectively appointed property and the elective share rights of a surviving spouse when the donee created the power.
Sources & Authorities· 3 primary sources
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Uniform Acts
Restatements
Course Outlines
How it applies
Common Examples
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Elective Share Claim by Surviving Spouse
Gregory Gates created an irrevocable trust funded with his own assets and granted himself a general testamentary power of appointment over the trust property. At his death Gregory's will exercised the power in favor of his children from a prior marriage. Gregory's surviving spouse Guadalupe Gallegos elects against the will and claims a share of the trust assets. Because Gregory was both donor and donee of the general testamentary power, the appointive property is treated as owned by Gregory at death and is therefore included in the elective-share calculation.
Federal Tax Consequence of State Law Ruling
Grace Gupta held a general testamentary power of appointment created by her deceased husband over a marital-deduction trust. A state probate court ruled that Grace's attempted exercise was invalid. The IRS then determined the federal estate-tax consequences of that ruling. Because the power was general and testamentary, the validity of its exercise is governed by the same state-law principles that control outright ownership interests for federal tax purposes.
Commissioner of Internal Revenue v. Estate of Bosch387 U.S. 456, 465 (1967)
Common questions
Frequently Asked
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What happens to property when a donee makes an ineffective appointment under a general testamentary power and the instrument names no takers in default?+
The ineffectively appointed property passes to the donee or the donee's estate rather than reverting to the donor. Modern doctrine treats the general power as the functional equivalent of ownership, so the property is distributed according to the donee's estate plan.
Supporting sources
Must a donee satisfy will formalities to exercise a general testamentary power when the creating instrument requires exercise by will?
Yes. The donee must manifest intent in an otherwise effective document that meets both the donor's specified formalities and applicable state law governing wills. An unexecuted draft, video message, or unwitnessed memorandum fails these requirements and leaves the power unexercised.
Supporting sources
Does a general testamentary power allow the donee to appoint property to a trust or create further powers in another person?+
Yes. The donee may make any appointment, including one in trust or one that creates a power of appointment in another, that the donee could have made by first appointing the property to the donee's own estate and then disposing of it as outright owner.
Supporting sources
When is property subject to a general testamentary power included in the donee's probate estate?+
The property is not included in the probate estate unless the donee exercises the power in favor of the donee's own estate. If the power remains unexercised or is exercised in favor of others, the property passes outside probate according to the terms of the creating instrument or the default rule for ineffective appointments.
Supporting sources
Trusts and Estates Trusts and Future InterestsFuture interests · Powers of appointmentUBEFoundational