Q&A Over Estates Under Texas Law: Power of Appointment

EDITOR’S NOTE:

During an inheritance process, managing the estate and its assets can seem confusing to the average lay person. Legal concepts and nomenclature can be used in ways that do not make sense to many people. In this short blog post, Sarah Toraason explains the concept of ‘power of appointment’ and how it works vis-a-vis a trust or estate.

 

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WHAT IS A POWER OF APPOINTMENT?

A power of appointment is a power of disposition that grants authority to another person (the powerholder) to decide how to dispose of certain property subject to any prescribed parameters. It can be used in wills, deeds, and trusts. No specific words are necessary to create a power of appointment so long as the intent to create such a power is clear.

There are two basic types of powers of appointment: general powers of appointment and limited (or special) powers of appointment. A general power of appointment does not restrict the exercise of the power by the powerholder, his estate, his creditors, or the creditors of his estate. For example, “I leave my property to A, to be distributed as A sees fit.” A limited (or special) power of appointment, however, cannot be exercised by the powerholder, the powerholder’s estate, her creditors, or the creditors of her estate. For example, “I leave my property to my wife to distribute among my children as she chooses.”

A power of appointment can also limit when the power may be exercised by the powerholder. For example, “I leave my property to B for life, remainder to such persons as B shall appoint by will” confers a testamentary power of appointment that can only be exercised by will.

In most jurisdictions, including Texas, the residuary clause of a will is not sufficient to properly exercise a power of appointment. Generally, a valid exercise of a power of appointment must either refer to the power of appointment or the property subject to the power. In the event the powerholder does not exercise the power of appointment and a contingent taker is not otherwise named, the property reverts back to the donor or the donor’s estate.

EDITOR’S SUMMARY

The creation, management, and litigation of estates can seem very complicated to the average lay person. If you or someone you loved has a relationship to a complex estate under Texas law, one of the concepts to be understood is the ‘power of appointment.’ Every situation is unique, however, so you are highly advised to reach out to one of our Dallas-based attorneys to discuss your unique situation vis-a-vis the complexities of estates under Texas law.